Expert foreign law evidence in jurisdiction disputes: ask for permission first

In Gulf International Bank BSC v Aldwood [2019] EWHC 1666 (QB), John Kimbell QC (sitting as a High Court Judge) gave some brief practical guidance on the proper approach to expert foreign law evidence in jurisdictional disputes. This arose in the context of a multi-million pound claim based on a personal guarantee signed by the Defendant.

On receipt of the claim form, the Defendant had issued an application challenging the court’s jurisdiction to hear the claim. At the hearing of the application, both parties relied on expert evidence of Saudi Arabian law.

However:

• Both parties’ expert evidence was simply served as exhibits to lay witness statements.
• Neither party had sought permission under CPR r. 35.4 to adduce the expert evidence.
• All of the reports failed to comply (in varying degrees) with the requirements of CPR Part 35 and the accompanying practice direction.

Each report also addressed different issues and each one raised new points not covered in the previous report. The judge noted that Andrew Baker J had commented on similar issues arising in a jurisdictional dispute in B.B. Energy (Gulf) DMCC v Al Moudi and Others [2018] EWHC 2595 at [50]:

“… the absence of either an agreed or directed-by-the-court review of what expert evidence was required, from what experts, answering what questions, has led to the exchange, through the service and counter-service of evidence, of an escalating volume of material not always addressing the same questions or analysing the case for the identification of the questions to be addressed in a consistent fashion …”

John Kimbell QC’s conclusion was as follows:

“Better case management is clearly needed for challenges to jurisdiction which involve foreign law expert evidence. Permission ought to be sought under CPR 35.4 to rely on foreign law evidence in all cases. It would also assist if there were a list of issues approved by the court for the foreign experts to address at the very latest before the applicant’s initial report (usually served with the application to challenge jurisdiction) is responded to. The enforcement of the requirement to obtain permission and the production of a list of issues for foreign law experts would go a long way in preventing the situation which has occurred both in this case and in B.B. Energy (Gulf) DMCC v Al Moudi and Others recurring.”