Mr Jose Carlos Maques Correia v Ms Suleima Williams

Hearing dates: 17 October 2022

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 9 November 2022 ………………………..

Introduction

Mr Jose Correia, the Appellant, appeals against an order dated 24 January 2022 of HHJ Gerald (“the Judge”) sitting in the Central London County Court. The Appellant was the Claimant in the proceedings before the Judge and the Respondent before me was the Defendant. I will call them “Appellant” and “Respondent” throughout this judgment. By that order the judge:

i) Dismissed the Appellant's application dated 23 December 2021 to adduce the expert report of a road traffic collision expert, Mr George Mighall;

ii) Dismissed his application dated 14 January 2022 for permission to obtain the expert report of an urologist and to adjourn the trial listed for hearing that day;

iii) Ruled that the Appellant's witness statement was inadmissible;

iv) Refused the Appellant's oral application to give oral evidence in chief, alternatively to adjourn the trial to allow amendment or regularization of his witness statement or to permit the Appellant to “start again”;

v) Dismissed the claim.

The Appellant originally sought leave to appeal on 5 grounds, namely that:

i) The Judge erred in refusing to admit his witness statement on the grounds of non-compliance with CPR 32 paragraph 18.1, 19.1 and 20.1 and Practice Direction (“PD”) 22 paragraph 2.4;

ii) Refused to admit the witness statement of his solicitor, Ms Alexandra Bailey and the exhibits there too;

iii) Refused to adjourn the trial to enable the Appellant to adduce the evidence of the urologist;

iv) Refused to admit the Appellant to address the expert evidence of Mr Mighall; and

v) The Judge's conduct at the trial was unjust because of serious procedural or other irregularities.

By order dated 17 May 2022 the Appellant was given leave to appeal on grounds 1–3 by Sir Stephen Stewart, sitting as a Deputy Judge of the High Court. He was refused permission to appeal on grounds 4 and 5. He renewed his application in respect to grounds 4 and 5 before me. I refused that renewed application. As to ground 4, I ruled that the decision of Sir Stephen was plainly correct; the Judge's reasons in the judgments in paragraph 8–9 were not in error. As to ground 5, like Sir Stephen, I concluded that even if the Judge's comments to counsel went further than they should, they did not give rise, even arguably, to a serious error affecting the outcome of the appeal.

The Respondent served a Respondent's Notice setting out alternative grounds for upholding the judgment. In particular, it is said that the judge was entitled to refuse to admit the Appellant's witness statement in the exercise of his case management powers; the judge was entitled to conclude that no, or no meaningful, weight could be placed on the statement of Ms Bailey and its exhibits and the judge was entitled to refuse to adjourn the trial and allow the Appellant to instruct and call a urologist because that was not reasonably required to resolve the proceedings.

As to the extant grounds, I had the benefit of detailed oral arguments from Mr Grant Armstrong on behalf of the Appellant and from Mr Jake Rowley for the Respondent. I am grateful to both counsel for their assistance.

The Background

The Appellant is a Portuguese national who has lived in the UK since 2002.

By an undated claim form enclosing Particulars of Claim dated 20 February 2020 the Appellant, as Claimant, sought damages for serious personal injury he sustained in a road traffic accident which occurred at about 5pm on 26 February 2017 at the junction of the A112, High Street Plaistow and Clegg Street, London E13.

The Appellant was riding a Honda motorcycle in a south easterly direction along the High Street and the Respondent, then the defendant, Suleima Williams, was driving a Ford Fiesta motorcar in the opposite direction intending to turn right across the Claimant's path into Clegg Street. The junction was controlled by traffic lights. The critical issue on liability was whether, as the Appellant alleged, the Respondent drove through a red light or crossed the juncture without the benefit of a green filter turning right; or alternatively, as the Respondent contended, the Appellant failed to stop at a red light.

On 27 July 2021 the case was listed for trial in the Central London County Court on Monday 24 January 2022 with a two day time estimate. The matter came on that day before HHJ Gerald. The Appellant was represented by Ms T Khan of counsel and the Respondent by Mr Rowley.

Ms Khan indicated that she intended calling her client on whose behalf a witness statement dated 15 December 2021 had been prepared. She also indicated an intention to rely on a witness statement from her instructing solicitor, Ms Alexandra Bailey. Ms Bailey's witness statement exhibited handwritten notes taken at a Magistrates Court hearing at the conclusion of which the Appellant had been acquitted of driving without due care and attention. I note in passing that when the Appellant had given evidence before the Magistrates Court he did so through an interpreter.

Ms Khan also indicated that she had outstanding applications for permission to rely on a report by Mr Mighall and for permission to instruct and then call an expert urologist. That latter application would, if granted, necessitate the adjournment of the trial and Ms Khan sought that adjournment.

The judge immediately raised concern about the statement of the Appellant. That witness statement was written in English. At paragraph 10 of that statement the following appears:

“Whilst I can understand and speak English I am not wholly fluent and rely on the assistance of a translator during court proceedings. I am able to make this statement in English because the principal solicitor of Harris da Silva solicitors speaks fluent Portuguese.”

The witness statement, which runs to some 126 paragraphs over 36 pages, ends with a statement of truth, in English, and a “Certificate of Translation” which reads:

“I, Charles da Silva, hereby certify that I am proficient in Portuguese and English. I translated the foregoing statement and read it back to Jose Carlos Marquez Correia in its entirety in Portuguese (European) on 15 December 2021.”

The statement of truth was signed by the Appellant himself and the certificate of translation by Mr da Silva.

Discussion before the Judge and the Judgment

Most of the first day of the trial was taken up with argument and the judge's rulings. I was provided with a transcript of the hearing and of three short extempore judgments, which are produced as a single, composite document. The first judgment (paragraphs 1–17 of the composite document) addressed the two applications to adduce expert evidence. There was then further argument before the judge gave his ruling and the reasons for that ruling on the admissibility of the Appellant's witness statement (paragraphs 18–36). There followed further submissions before the judge gave his ruling dismissing the claim.

I set out below the parts of the composite judgment and/or the discussion between judge and counsel relevant to each ground of appeal. But first I set out the relevant parts of the Civil Procedure Rules (“CPR”) and the King's Bench Division (“KBD”) and Chancery Division guidance.

Rules and Guidance

It was common ground before me that in accordance with CPR rule 52.21 (1) this appeal was not a rehearing of the matters before the Judge, but was a review.

CPR Part 22 and Practice Direction (PD) 22 deals with statements of truth

R. 22.1(1): The following documents must be verified by a statement of truth… (c) a witness statement.

R. 22.3: If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence.

PD 22 2.4. The statement of truth verifying a witness statement must be in the witness's own language.

CPR Part 32 deals with witness statements

R 32.4(1): A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

R32.8 A witness statement must comply with the requirements set out in Practice Direction 32.

The Practice Direction to part 32 (“PD32”) sets out requirements for the preparation of witness statements:

PD32:18.1. The witness statement must, if practicable, be in the intended witness's own words and must in any event be drafted in their own language.

PD32:19.1. A witness statement should – (8) be drafted in the witness's own language

PD32:20.1. A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence it must include a statement by the intended witness in their own language that they believe the facts in it are true”

PD32:23.2. Where a witness statement is in a foreign language –

(a) The party wishing to rely on it must –

(i) have it translated; and

(ii) file the foreign language witness statement with the court; […]

PD32:25.1 Where:

(1) an...