Expert foreign law evidence … or judicial roulette?

We have previously blogged about the need for parties to litigation to follow the proper formalities in order to rely on expert foreign law evidence.

In Pescatore v Valentino & Ors [2021] EWHC 1953 (Ch), HHJ Paul Matthews set out the position again:

Before I turn to deal with the application for an injunction, I should say this. There was no direction for expert evidence of Italian law or procedure, and therefore no such admissible evidence before me. Some of what Avvocato Giambrone says in his witness statement might be seen as bordering on expert evidence of Italian law. But even if there had been a direction for such evidence, he as the respondents’ lawyer would obviously not have the necessary independence to give it.

HHJ Paul Matthews was hearing a claim for an anti-suit injunction in the context of related litigation in Italy. An assessment of Italian law was relevant to the question of whether the Defendants would be deprived of a juridical advantage if an injunction were granted against them.

Despite there being no formal foreign law evidence, the judge decided to take “judicial notice” of some of the different features of property and inheritance law in civil law jurisdictions as against England and Wales.

Given that the content of foreign law is generally treated as a fact which must be proved by evidence, why did he do this? And does this approach open the gates for future parties to plug gaps in their cases in this way?

The judge justified his approach by explaining that the difference between these features of the legal systems in England and in Italy was “notorious”:

Nevertheless, I am sure that I can take judicial notice of the fact that the substantive law of property and inheritance in civil law countries, such as Italy, is very different from that which applies in common law countries, such as England: see eg Lambton v Lambton [2013] EWHC 3566 (Ch), [40], per Sir Terence Etherton, C. For example, it is well known that, on death in civil law countries, there is direct succession to the deceased’s property by his or her heirs, and no period of administration in the common law sense is interposed between them. It is also known that the concept of ‘estate’ used in common law systems does not correspond to the concept of ‘patrimony’ (patrimonio in Italian) used in the civil law ones. Further, there are compulsory inheritance shares for certain close relatives of the deceased. All this is, in the technical sense, notorious.

Why did the judge use the word “notorious” in particular?

Perhaps it was because he wished to call to mind the words of Bray J in the early 20th century case of Saxby v Fulton, which are sometimes said to show that judges can take judicial notice of foreign laws which are “notorious”:

I was asked to assume, in the absence of evidence, that the law in Monte Carlo is the same as in England as regards gaming, but I decline to make this assumption; it is notorious that at Monte Carlo roulette is not an unlawful game.

The problem with that authority is that it has in more modern times been the subject of disapproving comments:

Foreign law is a question of fact. It must be pleaded and proved by expert evidence. The court cannot take judicial notice of foreign law, though it be notorious: Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 at p. 297. In the absence of evidence, foreign law is presumed to be the same as English law. In the present case no question of foreign law has been pleaded, and no evidence of foreign law has been tendered.

Per Millett J in El-Ajou v Dollar Land Holdings Plc (No.1) [1993] 3 All ER 717, overturned on other grounds by the Court of Appeal

And it has even been noted that, on closer examination, Saxby might not be the “authority” it seems to be:

Whatever the position may be in civil actions, in criminal cases at least we are clear that questions of foreign law cannot be the subject of judicial notice … Quite apart from the difficulty of deciding whether a point has sufficient notoriety, the case usually cited in support of this contention, which is Saxby v. Fulton [1909] 2 K.B. 208, turns out on examination to be a case where not only was the court prepared to hold, but the parties were in fact agreed, that roulette is a game which is legal in Monte Carlo.

R. v Noble Julius Ofori (1994) 99 Cr. App. R. 223

Seemingly mindful of this, in Pescatore, HHJ Paul Matthews went on to explain that he was not just relying on the notoriety of the position in general, but was also drawing from his own unusual experience as a lecturer and adviser to the European Commission:

As it happens, it is also very well known to me, because as a professor at King’s College London I formerly taught postgraduate law courses on international and comparative property law and international and comparative inheritance law, which were attended by students and indeed sometimes academic lawyers from many different countries. I have also attended many international conferences and given lectures in foreign universities where these matters have been discussed, and have spent time working in foreign (particularly Italian) lawyers’ offices.

Finally I was also a member of the panel of European experts which advised the European Commission on the proposals and drafts which led to Regulation (EC) No 650/2012 of 4 July 2012, on wills and successions, and I took part in many meetings in Brussels for that purpose. This was enacted as part of the corpus of European Union law at a time when the United Kingdom was a member state, although in fact the United Kingdom exercised its right to opt out of its applicability to the United Kingdom. (I am not sure whether that means that it is, or perhaps was, part of ‘my’ law or not. For present purposes, since the matter has not been argued, I shall assume not. Accordingly, I do not need to consider the effects of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, which contain provisions for EU law to continue to have effect as part of UK domestic law, unless UK legislation provides to the contrary.)

There is obviously a danger in judges relying too heavily on their own experience to plug gaps in the factual evidence before the court. HHJ Paul Matthews made clear that he had this well in mind:

As a result of these experiences, I am acutely aware of the need to avoid accidentally giving ‘expert’ evidence to myself. But what my understanding of the many differences in civil law and common law property and inheritance systems tells me above everything else is the importance of not trying to find analogies, let alone equivalents, in one’s own system for what happens in another, and accordingly the greater value of issues of property and inheritance law being decided by judges in the relevant systems, rather than in foreign ones.

Ultimately, he concluded that there was no real weight to any possible juridical advantage in the continuation of the Italian proceedings. Having found that the natural forum of the dispute was England and that the continuation of the Italian proceedings was oppressive, he therefore allowed the claim for the injunctions.

Does this open the door to future parties trying to get by without following the formalities of obtaining their own expert evidence?

The answer, given the context of these claims for anti-suit injunctions and the unusually specific expertise of the particular judge, seems to be no. Lawyers who fail to obtain directions for expert foreign law evidence and instead pin their hopes on a tribunal with a similarly distinguished background in cross-border litigation will therefore be taking a gamble when it comes to proving their client’s case.

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