Tuesday, 29 March 2011

Documents in need of translation: a word of wisdom

Gemstar- Tvguide International Inc & Others v Virgin Media Ltd & Another [2011] EWCA Civ 302 (29 March 2011) is a fairly unexceptionable decision of the Court of Appeal for England and Wales which will doubtless be picked up and analyses by other blogs.  The bit that caught PatLit's eye dealt with an issue that causes frustration and ezpense from time to time -- dealing with documents that have to be translated.  On this topic Lord Justice Jacob (sitting with Laws and Patten LJJ) had this to say:
"11. ... I must say a word about the disputes over translation. For there have been several translations. A lot of expense and time was wasted because of this. I do not go into the detail. In principle, whenever a party relies on a document in a foreign language, the translation should be sorted out at an early stage. Ideally the party relying on the translation should send it to the other(s) with an express request for agreement within a reasonable time. If the document is quite long the key passages relied on should be identified so that the other side can concentrate on these. If the translation is agreed, well and good. But if not, the Court at the case management stage should normally insist upon agreement or early resolution of the translation dispute, if necessary by a hearing for that purpose.

12. In the end, but only at trial, a translation was settled upon. It is that which must be construed – through of course the eyes of the skilled man. But, and this is an important but, the question of construction is one for the court, not for expert witnesses. Their job is to give the court the necessary understanding of the technology. Whilst it does not matter much if they opine in their witness statements on the meaning of the document, it is really their reasons which matter. It is worth bearing this particularly in mind when it comes to cross-examination – for otherwise the cross-examination can descend into pointless discussion about the meaning. In the present case, for instance, each side may have been somewhat guilty of that, and there has been reliance by both sides on the opinions as to meaning of the experts. I do not intend to go down that path, ... ".
Thus the processing of documents in need of translation is another item to stick on the increasingly long list of things which should be firmly dealt with at the stage of the case management conference -- quite rightly so.

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