High Court applies Brownlie approach to pleading foreign law

In this blog post, Max Archer considers Qatar Airways Group QCSC v Middle East News FZ LLC [2020] EWHC 2975 (QB).

This was a claim for malicious falsehood (and other torts including conspiracy) brought by Qatar Airways against various media companies registered in the UAE, Dubai, and the United Kingdom. Saini J found that there was a good arguable case against the Defendants, serious issues to be tried, and that the case fell within three of the CPR’s jurisdictional gateways.

Of particular significance for readers of this blog is that this is apparently the first case engaging with the Court of Appeal’s ruling on pleading and proving foreign law in FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996. We considered the difficulties posed by the three apparently inconsistent judgments in that case in a separate post here.

In summary, the judge in Qatar Airways approved and applied Underhill LJ’s approach to the issue.

The Background

In June 2017, Qatar was subject to an air blockade imposed by Saudi Arabia, the UAE, Bahrain, and Egypt. As a consequence of this blockade, Qatari registered aircraft could only use airspace belonging to the states imposing the blockages through specified air corridors.

A journalist produced a video which all of the Defendants publicized online and through social media. The Claimant alleged that the video in question misleadingly conveyed the message that its flights might be shot down and that passengers would be subjected to maltreatment in the event that the aircraft were to be grounded. The Claimant alleged that the video had the effect of discouraging customers from taking flights and that it had consequently sustained heavy losses.

The Claimant brought claims for malicious falsehood and other torts against the Defendants, who argued that there was no serious issue to be tried.

The Decision

It is beyond the remit of this blog post to deal with every aspect of Saini J’s thorough and well-reasoned judgment in coming to his view.

Of most importance for private international lawyers: (i) he rejected the assertion that the claimant should have pleaded foreign law to demonstrate a serious issue to be tried; (ii) he found that the claim fell into three of the CPR’s jurisdictional gateways; and (iii) he found that England was the proper place for the claim to be heard (forum conveniens).

At the outset he dealt with the issue of the journalist’s video and its meaning. He held that the video arguably conveyed the overall impression that there was a risk that a Qatar Airways flight might be intercepted or shot down whilst flying over a defined air corridor. He held that there was in fact no real risk of legitimate interception or shooting down under international aviation law. He also held that given the amount of views the video had received, its publication was significant for jurisdictional purposes. Consequently the Claimant had established a real prospect of showing substantial losses in the UK and indeed worldwide.

Pleading Foreign Law

Neither Rome II nor the Private International Law (Miscellaneous Provisions) Act 1995 applied to the claims for malicious falsehood. Instead, the applicable law was to be determined by reference to English common law rules, i.e. that of double actionability.

There was also a claim for conspiracy that did fall within the scope of Rome II. Under art. 4(1) the proper law was “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred”. It was common ground that  “damage” would be suffered in the place where potential passengers failed to enter into contracts with the Claimant.

The Defendants took issue with the Claimant’s failure to plead any foreign law, arguing that their failure to plead foreign law meant that they had not established a serious issue to be tried. The Claimant argued that they were entitled at the jurisdiction hearing to rely on the presumption that the foreign law was identical to English law.

The judge agreed with the Claimant, holding that it was entitled to rely upon the presumption that foreign law is the same as English law such that, unless and until it is shown that the applicable foreign law is materially different, the concepts of English law will be sufficient to show that that part of the claim is civilly actionable under any applicable foreign laws.

In Brownlie, the three appeal judges had all taken different approaches to the question of exactly what should happen in a situation where the Claimant accepted that a foreign law would in principle apply but the Defendant objected to reliance on the common law presumption that the foreign law will reflect English law.

In Qatar Airways at [181], Saini J preferred and adopted the approach of Underhill LJ, which he summarised in the following way:

(a) In a case where foreign law would apply in principle it is enough to establish a serious issue to be tried to justify service if: (i) the claimant relies on the presumption and does not plead the content of foreign law; (ii) there are real prospects of success applying English law concepts; and (iii) the defendant does not contend, or provide evidence, that any potentially applicable foreign law is different in a way that would mean that there are no real prospects of success.

(b) In accordance with the overriding objective, and if they become relevant following pleadings, the foreign law aspects of a claim should be managed in a proportionate manner at a CMC. Like other areas of potential factual disputes, issues of foreign law cannot in most cases be dealt with practically or justly at the jurisdiction stage.

(c) This general rule is subject to departure in exceptional situations or where the nature of the substantive issues makes it inappropriate to apply the presumption at the jurisdiction stage. The classic example is infringement of foreign intellectual property rights. Another example is illustrated by Shaker v Al Bedrawi [2003] Ch 350, [29], [32], [64]-[72], where it was inappropriate to rely on the presumption to presume that US companies would be regulated by technical aspects of European companies law. There may be other situations.

In Brownlie at [57]–[67], McCombe LJ (the other member of the majority apart from Underhill LJ) did not directly resolve the question of the formal application of the presumption. He concluded that the relevant question at the jurisdiction stage, when assessing a serious issue to be tried, was to assess evidence, pleading and the possible application of the default rule together in making a “common sense” assessment of whether there were real prospects of success.

It was significant, then, that in Qatar Airways at [177]–[180] and [186]–[187], although Saini J thought that McCombe LJ’s test had been satisfied, he explained that the claimant “does not need to prove this” since “it is right to argue the presumption is sufficient.”

On the other hand, Saini J rejected the Defendants’ submissions, based as they were on Arnold LJ’s (minority) approach in Brownlie. He did so on the grounds that Arnold LJ’s view failed to reflect substantial earlier authority cited and explained in Underhill LJ’s judgment in Brownlie. He commented that Underhill LJ’s approach was not merely supported by authority but was a ‘sound and practical approach’.

The Claimant’s reliance on the presumption and the Defendants’ failure to identify any controverting aspects of foreign law was enough. There was no evidence that the applicable foreign law was different in such a way that there were no real prospects of success. 

The Gateways

Saini J held that the Claimant’s claim fell into three of the CPR’s jurisdictional gateways.

First, the Judge found that the claims fell into the tort gateway. He examined the authorities on what constitutes damage ‘sustained within the jurisdiction’ for the purposes of CPR3.1(9), finding that on authority in cases where there is damage both within and outside of the jurisdiction this gateway is satisfied. In this regard he folowed Metall & Rohstoff v Donaldson in which it was found that it was enough ‘if some significant damage has been sustained in England”. He found that this includes both ‘direct’ and ‘indirect’ damage, following the approach of the majority in Brownlie in the Supreme Court. On the facts of this case it was held that there was publication and loss in England which fell directly into CPR 6BPD 3.1(9).

The Claimant also satisfied the injunction gateway. Finally, he found that the claim fell into the ‘further connected claims gateway’ on the grounds that the claims against the UK domiciled defendants arose out of facts intertwined with the facts falling under CPR 6BPD 3.1(9), as were the losses, which were part of an overall global loss.

Forum Conveniens

As to whether England was the ‘proper place to bring the claim’, there was no dispute over the applicable legal principles.

The Defendants relied on case law that identified the Court’s task as standing back and asking the practical question ‘where the ‘fundamental focus of the litigation’ was to be found. The Defendants submitted that the UAE was the natural forum for the proceedings. Noting that the UAE courts and the DIFC would have jurisdiction in respect of the dispute. It was also submitted that the subject matter of the claim and the commission of the main torts had no substantial connection with England.

The judge disagreed, the central point underpinning his reasoning being that in his view there would be access to justice issues for the Claimant, a Qatari company, in bringing any proceedings in the UAE. The judge held that in the political circumstances of the case the UAE was not a neutral forum. Indeed, Qataris were banned from the UAE and the Claimant’s bank accounts and business activities were suspended there.

On this basis the judge held that England was the proper place for the claim to be tried. The judge noted in conclusion that ‘a channel like Al Arabiya publishing on the internet a video with worldwide impact should not be too fastidious about where it is sued.’

One thought on “High Court applies Brownlie approach to pleading foreign law

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s