Pre-action considerations and steps - Practice Direction: use of the Welsh language in civil proceedings

Learning Outcomes

This article examines the preliminary considerations that arise where the Welsh language is to be used in civil proceedings in England and Wales. It covers the statutory foundation for using Welsh in court, the equality principle, the duty to notify the court and the other parties at the earliest opportunity, the practical consequences for listing, interpretation and translation, and the costs position. After reading this article, you should be able to advise a client who wishes to give evidence in Welsh, identify the point in the proceedings at which notification must be given, explain what the court will arrange and at whose expense, and recognise the sanctions that can follow from late notification.

SQE1 Syllabus

For SQE1, you are required to identify the preliminary considerations that apply before and during a civil claim, including the following syllabus point:

• the Practice Direction on preliminary considerations for the use of the Welsh language in civil proceedings, including:
  • the statutory right to use Welsh in legal proceedings in Wales and the principle that Welsh and English are treated on the basis of equality
  • the duty to notify the court and the other parties, and the stage of the proceedings at which notification should be given
  • the effect of notification on listing, on the allocation of a Welsh-speaking judge, and on the provision of interpretation facilities
  • the filing and service of documents and witness statements in Welsh, and the court's power to direct translations
  • who bears the cost of interpretation and translation, and the consequences of failing to notify in time.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, look more closely at that area during your revision.

1. Who may use the Welsh language in civil proceedings in Wales?

   • a) Only a party who is not fluent in English
   • b) Any party, witness or other person taking part
   • c) Only a party who is legally represented
   • d) Only a witness giving oral evidence

2. When should the court be told that the Welsh language will be used?

   • a) At the trial itself
   • b) At the earliest possible opportunity in the proceedings
   • c) Only after judgment has been handed down
   • d) Only if the other party objects to its use

3. Who bears the cost of interpretation facilities arranged by the court?

   • a) The party who wishes to use Welsh
   • b) The party who does not speak Welsh
   • c) The court service, at public expense
   • d) The costs are shared equally between the parties

4. What is the likely consequence of failing to notify the court in time?

   • a) The claim is automatically struck out
   • b) The party loses the right to use Welsh at all
   • c) An adjournment, with a possible order for costs thrown away
   • d) The proceedings are transferred out of Wales

Introduction

A solicitor conducting a civil claim with any connection to Wales has to deal with a preliminary question that does not arise elsewhere: which language will the case be conducted in. The Welsh language has official status in Wales, and any party, witness or other person taking part in legal proceedings in Wales may speak Welsh. That is a right, not a concession, and it does not depend on the speaker's command of English.

The practical consequences fall almost entirely on the party's legal representatives. The court can only give effect to the right if it knows about it in time to list the case appropriately and to arrange interpretation. That is why the relevant Practice Direction treats the question as a preliminary consideration, to be raised at the outset rather than discovered at the door of the court.

Test Tip: Questions on this topic almost always turn on timing and on who pays. Learn that notification must come at the earliest opportunity, that the court arranges and funds interpretation, and that lateness costs the defaulting party rather than the Welsh speaker.

The Statutory Foundation and the Equality Principle

The right to use Welsh in legal proceedings in Wales rests on the Welsh Language Act 1993, under which any party, witness or other person who wishes to speak Welsh in legal proceedings in Wales may do so. The Welsh Language (Wales) Measure 2011 gives the Welsh language official status in Wales.

Key Term: Equality principle
The principle that, in the administration of justice in Wales, the Welsh and English languages are to be treated on a basis of equality, so that no party, witness or other participant is placed at any disadvantage by reason of the language they choose to use.

Two consequences follow from the equality principle, and both are commonly tested:

• A person choosing to use Welsh does not have to justify that choice, explain their level of English, or show that they would be disadvantaged by proceeding in English.
• No adverse inference, procedural disadvantage or costs consequence may follow from the choice itself. The choice of language is not a tactic to be scrutinised.

The Duty to Notify

The Practice Direction requires the parties and their representatives to consider the language question at the earliest opportunity and to tell the court whether the Welsh language will be used by any party, witness or other person taking part.

In practice, notification is given:

• in the claim form or the response, or in correspondence with the court at the point of issue, where the position is already known
• at the latest, in the directions questionnaire completed when the case is allocated to a track, which asks expressly about the use of Welsh
• as soon as the position changes, if a witness is identified later who wishes to give evidence in Welsh.

The obligation is not confined to the party who wishes to use Welsh. Each party must consider the position of its own witnesses and inform the court, and the point should be raised at any case management conference.

Exam Warning: Do not treat the directions questionnaire as the earliest point at which the issue can be raised. It is the backstop, not the starting point. If the position is known when proceedings are issued, it should be communicated then.

Listing, Judges and Interpretation

Once the court is on notice, several administrative consequences follow.

• Listing. A case in which Welsh will be used should, so far as is practicable, be listed at a court in Wales with the facilities needed to conduct a bilingual hearing, including simultaneous translation equipment where the hearing requires it.
• Judiciary. Where it is practicable to do so, the case should be listed before a judge with Welsh language ability, which removes the need for interpretation of what the judge hears directly.
• Interpreters. Where interpretation is needed, the court arranges it. A party does not instruct and pay for an interpreter for the court's benefit in the way it would instruct an expert.
• Timing. Because listing before a Welsh-speaking judge and booking interpretation equipment take time, late notification is far more disruptive than the notification itself.

Key Term: Simultaneous translation
An arrangement, usually using headsets and a booth or a remote interpreter, by which evidence given in one language is rendered into the other in real time, so that the hearing proceeds without repeated pauses for consecutive interpretation.

Documents, Statements of Case and Translations

The Practice Direction also deals with documents.

• A document may be filed or served in Welsh. A statement of case, a witness statement or an exhibit prepared in Welsh is a valid document.
• Where a document is in Welsh and a party or the court needs it in English, the court may direct that a translation be provided.
• A witness who wishes to give evidence in Welsh should have their witness statement prepared in Welsh, with a translation provided if directed. Preparing a statement in English for a witness who will testify in Welsh creates avoidable difficulties about the accuracy of the statement.
• Judgments may be given in Welsh, and a bilingual judgment may be handed down where the court considers it appropriate.

Costs

The costs position reflects the equality principle.

• The cost of interpretation facilities and of translations directed by the court is borne by the court service at public expense, not by the party using Welsh.
• Choosing to use Welsh cannot found an argument that a party has increased the costs of the proceedings unreasonably.
• Where a party fails to notify the court in time and a hearing has to be adjourned as a result, the ordinary costs consequences of an adjournment apply. The court may order that party to pay the costs thrown away, and the defaulting party is usually the one that failed to give notice rather than the Welsh speaker.

Worked Example 1.1

A claimant issues proceedings in a county court hearing centre in Wales. Two of her three witnesses wish to give their evidence in Welsh, and one of them has prepared a witness statement in Welsh. Her solicitor says nothing about the language until the pre-trial checklist stage, shortly before the listed trial date.

What are the consequences?

Answer:
The right to give evidence in Welsh is unaffected: the witnesses may still do so, and no adverse inference or costs penalty follows from their choice of language. The problem is the timing. The court should have been told at the earliest opportunity, and at the latest in the directions questionnaire, so that the case could be listed before a Welsh-speaking judge and interpretation arranged. On these facts the trial may well have to be adjourned to make those arrangements, and the court may order the claimant to pay the costs thrown away, because the default lies with her representatives rather than with the witnesses.

Worked Example 1.2

A defendant objects that the claimant's decision to give evidence in Welsh is a tactical device intended to increase costs and delay, and points out that the claimant is a fluent English speaker.

How should the court deal with the objection?

Answer:
The objection fails. Any party or witness may use Welsh in legal proceedings in Wales, and the equality principle means the choice cannot be questioned by reference to the speaker's command of English. Interpretation is arranged and funded by the court, so the choice does not increase the costs recoverable between the parties. The court should simply confirm the arrangements needed for the hearing.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Any party, witness or other person taking part in legal proceedings in Wales may speak Welsh, under the Welsh Language Act 1993.
• The Welsh and English languages are treated on a basis of equality, so no participant may be disadvantaged by their choice of language.
• A speaker does not have to justify the choice of Welsh or demonstrate any difficulty with English.
• The parties must consider the language question at the earliest opportunity and tell the court whether Welsh will be used.
• Notification should be given when proceedings are issued if the position is then known, and in any event in the directions questionnaire at allocation.
• The court will, so far as practicable, list the case before a Welsh-speaking judge and at a venue with translation facilities.
• Interpretation is arranged by the court and funded at public expense rather than by the party using Welsh.
• Statements of case, witness statements and exhibits may be filed and served in Welsh, and the court may direct translations.
• Judgments may be given in Welsh, and bilingual judgments may be handed down where appropriate.
• Late notification risks an adjournment and an order that the defaulting party pay the costs thrown away.

Key Terms and Concepts

• Equality principle
• Welsh Language Act 1993
• Directions questionnaire
• Simultaneous translation
• Costs thrown away