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The Language Barrier – foreign language documents in offshore proceedings

Obtaining a certified translation of the entirety of every document exhibited to an affidavit in Court proceedings takes a considerable amount of time, and especially in the case of urgent injunctions, is not always practical.

It is also prohibitively expensive, so understandably unpopular with many clients. Perhaps surprisingly, no guidance is to be found on this point in the Grand Court Rules in Cayman or the Supreme Court Rules in Bermuda.  In the BVI, the Eastern Caribbean Civil Procedure Rules contain a proviso, at PD69A at para. 6(a)(viii), that in a Trial Bundle:

“…documents in any language other than English should be followed immediately in the bundle by an agreed translation or if the translation cannot be agreed, then each party should include its own translation, clearly indicating which party puts the translation forward.”

This is very similar to the provisions in respect of translations and hearing bundles at app.6 para.13 of the English Chancery Guide. It should be noted however, that these provisions only relate to the content of trial or hearing bundles and not to exhibits to affidavits or witness statements generally. The way we have decided to approach the problem, especially where such evidence is to be relied on in urgent or ex parte hearings, is for the witness to include in the body of the affidavit his or her English translation of the relevant excerpts from the exhibit documents, and for those relevant excerpts to be highlighted in the exhibit in their original language (eg “the highlighted section of the judgment of the foreign court at page X, states:”).

If the witness is not fluent in English, then the witness will need to swear the affidavit in his or her mother tongue. The highlighted excerpts from the relevant exhibit document should be included in their original language in the body of the affidavit. When the affidavit is translated and certified, it will therefore include the English translation of the relevant highlighted excerpt. By proceeding in this way, the Court: i) is provided with the relevant exhibit evidence in English; ii) can identify from where the evidence is taken; iii) can take comfort in the fact that the English version is sworn or certified as accurate; and iv) is not overwhelmed by unnecessarily lengthy papers.

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