Foreign law evidence: think about the practical side

It is one thing to follow the formalities to get expert foreign law evidence before the court in the first place (and all litigants should, of course, make sure that they follow the proper formalities).

But canny litigants need to go a step further and think about the practicalities of how their expert will give evidence and what impact this might have on the judge’s perception of the expert and the evaluation of their evidence.

This factor has always been relevant, but it has become especially important in the context of increasing reliance on remote or hybrid hearings where evidence may be given by individuals who are not physically present in the courtroom.

In Emerald Pasture Designated Activity Company & Ors v Cassini SAS & Anor [2021] EWHC 2443 (Ch), HHJ Kramer made some useful comments showing that considerations of this kind do play an active role in how judges approach foreign law disputes. The take-away from this blog is that litigants need to give real thought to the practicalities well in advance of any hearing.

It is not so much a practice point, but cross-border practitioners may want to “cut out and keep” HHJ Kramer’s useful summary of what foreign law evidence is and how it is to be adduced:

Before considering the evidence and argument on this issue it is important to set out the context, particularly for those who are not acquainted with English law. English courts treat foreign law as a matter of fact to be proved by the party basing their claim or defence upon it; Dicey, Morris & Collins, 15th edition (“DMC”), chapter 9-02 and 9-025. Save in the case of limited exceptions which do not apply here, English courts do not take judicial notice of foreign law so it must be proved in each case; DMC chapter 9, paragraph 4. Generally foreign law is proved by expert evidence. The text of foreign enactments, decisions and books of authority can only be placed before the court as part of the expert evidence. DMC chapter 9, paragraph 13. Legal practitioners practising in the foreign country and academic lawyers specialising in the law of that country are competent, that is to say able to give admissible evidence in this field; DMC, chapter 9, paragraph 14. Where the evidence of each party’s expert witness conflicts as to the effect of the foreign source of law, the court is bound to look at the sources to decide between the conflicting testimony using its own intelligence as on other questions of evidence: DMC, chapter 9, paragraphs 16 to 17.

A point that has been commented on in many cases is that the relative strength of the foreign law experts’ CVs is not a decisive factor. HHJ Kramer commented on this:

I have no doubt as to his expertise. His reputation, however, is only one factor to take into account. Mr Allison accepted that greater renown as an expert is not determinative as to who is correct. I have to analyse the argument and evidence presented to reach a conclusion on that issue.

The judge was in that respect echoing Stuart-Smith J, who summarised the point nicely in Vilca & Ors v Xstrata Ltd & Anor [2018] EWHC 27 (QB):

If the Court’s task was merely to determine which expert had the longer or more distinguished CV, Professor Fernández would win the competition. However, that is not the Court’s task.

Of particular interest are HHJ Kramer’s comments on the manner in which the two experts gave evidence and the advantage being physically present in the courtroom gave to one of the experts:

I should say something about the manner of giving evidence. The experts gave evidence under very different conditions. Dr Dammann was in court and tended to give focused answers more directed at the question. This aided me not only in following his evidence but in asking for clarifications where I felt necessary. He was in a position to take visual cues as to whether I was taking in what he was saying and offer to give explanations.

Professor Le Corre gave evidence through an interpreter via a video-link which itself tends to discourage clarificatory questions from the judge. Several of his answers were quite long, as were some of the questions he was asked. His desire to explain his stance at length is understandable as, upon enquiry of the clerk, I discovered that his view of the court was only of the questioner, so he could not see the audience, i.e. the judge, he was seeking to inform. It seems that the conditions under which Professor Le Corre gave evidence were challenging and I make due allowance for that. Where he did not always answer the question he was asked or took a few questions to get to the answer, that was to a large degree a consequence of the practical arrangements for taking his evidence.

Another practical issue that litigants often face is the strength of their expert’s grasp of the English language. Unless the judge makes due allowance for it, this could potentially lead to misunderstandings which could prove very costly:

In reaching this conclusion, I think it is fair to also take into account that although Dr Dammann’s English was very good, it is clear that he is not a native English speaker, some of his syntax was perhaps not those of a native speaker, but at all events I am clear that he had not suddenly changed his mind to suggest that information covenants would not be enforceable following safeguarding.

Lastly, HHJ Kramer commented on the role of the English judge in such cases. It is always worth bearing in what the English court is and, perhaps more importantly, is not doing when hearing foreign law disputes:

It is important to record that it is not my task to act as a French judge, analysing and interpreting the French law and how it ought to be developed for myself. My role is limited to finding as a fact what is the French law on the enforceability of the information provision in this contract based on the expert evidence that has been placed before me, which, for practical purposes, is a question of deciding between the two of them who is likely to be correct.

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