When Best Practice Creates Barriers: PD 57AC and Access to Justice

A witness statement is the key vehicle for someone to relay their version of events to the court; as such, they are not only crucial legal documents but also hold a significant personal importance for those making them.

CPR Practice Direction 57AC (‘PD 57AC’) and the supporting Statement of Best Practice governs the preparation of trial witness statements, specifically those in the Business and Property Courts.

PD 57AC was introduced in April 2021 following concerns that solicitors were shaping their clients’ witness statements. A witness statement must be in the witness’s ‘own words’ and drafted in their own language; the court expects solicitors to keep witness statements focused on the witnesses’ personal knowledge and genuine recollection.

In practice, however, PD 57AC may have left some clients more vulnerable than before. Clients represented in the Legal Aid sector can include those with learning disabilities, low literacy and/or a lack of confidence in English. They may struggle to express themselves in the full sentences and chronological order that is required in litigation.

PD57AC made specific provision to ensure that a client’s ‘own language’ is used, meaning any language in which the witness is sufficiently fluent to give oral evidence, including under cross-examination. This does not necessarily need to be their first language. Where a witness is not sufficiently fluent in English, the statement should be in their own language with a translation provided.

For those clients providing instructions in a language other than English, the client’s account is interpreted into English for drafting and then translated back before signature. As a result, the burden of transcribing the client’s instructions has shifted away from the solicitor and towards an interpreter. This has created a particular risk, as interpreters are not held to the same professional standards as solicitors, and may not necessarily be trained in legal proceedings; interpreters will not always understand how an approximation or interpretation of a word or sentence that cannot be translated directly may sounds in the context of legal proceedings. Even with a careful interpreter, each step creates another risk that the client’s instructions might be, quite literally, lost in translation.

The introduction of PD 57AC has made it harder to convey a vulnerable client’s circumstances fully. Where language barriers exist, the process can also place heavy reliance on translation, increasing the risk that nuance and context are misinterpreted. In this, PD57AC risks pushing already vulnerable clients into an even more precarious position: less able to correct the record, more dependent on intermediaries, and more exposed to misunderstanding or undue influence within a system they may not fully understand.

If you or your client may be affected by issues surrounding witness evidence or access to justice, our experienced litigation team is here to help. Get in touch with us today to discuss how we can support you. Call 0330 822 3451 or request a callback.