Pleading foreign law: the practicalities considered

A couple of weeks ago, we blogged on the first case applying the Brownlie approach to pleading foreign law. These decisions are now coming thick and fast. In this blog post, Sam Cuthbert considers recent developments in this context.

In Suppipaj & Ors v Narongdej & Ors [2020] EWHC 3191 (Comm), Butcher J gave a reserved judgment following a CMC in a case concerning an alleged fraudulent conspiracy. This decision is of particular interest because it considers what a claimant should do in practical terms when a defence raises specific foreign law provisions. It is this aspect of the decision that Sam deals with in this blog post.

It will be recalled that Rule 25(2) in Dicey, Morris, & Collins on the Conflict of Laws says:

(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means.

(2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case.

In FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996, two judges of the Court of Appeal (Underhill and Arnold LJJ) took differing approaches to the effect of this presumption and one (McCombe LJ) did not directly address this at all.

However, in Qatar Airways Group QCSC v Middle East News FZ LLC & Ors [2020] EWHC 2975 (QB), the first case applying Brownlie (blogged on here), Saini J adopted and applied Underhill LJ’s approach in the context of a jurisdictional challenge.

In Suppipaj at [43], Butcher J agreed with Saini J that “whether or not it is to be regarded strictly as the ratio of the majority”, the law should be regarded as being authoritatively stated in the judgment of Underhill LJ. He explained at [49] that “it allows the parties to choose to have some parts of the case dealt with under a foreign law, and other parts under the presumption; and they can thus choose on which points to plead and evidence foreign law. They may well make that choice on the basis of which points matter.”

What does this mean in practical terms? In Brownlie at [179], Underhill LJ explained that a claimant in response to a defence relying on particular provisions of foreign law is entitled to plead his case on foreign law in a reply. In Suppipaj at [47], Butcher J agreed with this approach, saying:

I do not consider that, as a general matter, it can be said that claimants necessarily have to amend their Particulars of Claim to plead the elements of the foreign law on which they rely in answer to the defendants having relied on such law, even if those elements go to the cause of action under the foreign law which the claimant is relying on.

On the other hand, Butcher J accepted that it may in some circumstances be more convenient for the foreign law relied on by the claimant to be pleaded in the particulars of claim. There will also be rare cases in which it will be unreasonable for the claimant ever to rely on the presumption in pleading its particulars of claim. An example identified by Butcher J would be “where the parties have already been communicating with each other about the matter and the defendant has made its position in relation to the applicability of provisions of the foreign law clear.”

Suppipaj was an unusual case, because the Defendants had not only chosen to plead Thai law in their defences, but had doubled down in arguing that the Claimants could not plead to that case in any replies, and that they would apply to strike out the Claimants’ particulars of claim if they were not amended. This was contrary to Underhill LJ’s suggested approach in Brownlie.

Butcher J’s response to the Claimants’ successful applications for amendment was to penalise the Defendants by departing from the usual rule that a party applying for an amendment would usually be responsible for the costs of and arising from the amendment. The order would instead be “costs in the case”.

This decision therefore represents a warning shot fired across the bows of defendants seeking to undermine the substance of Underhill LJ’s approach to pleading foreign law by demanding amendments to claimants’ particulars of claim.

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