This is the third and final instalment in our Brownlie II mini-series.
In this third article, Patrick Vincent QC considers the many new tactical choices now available to litigants in cross-border claims based on the Supreme Court’s approach to the rules concerning the use of foreign law in English proceedings.
It is difficult not to see the judgments in Brownlie as a gauntlet thrown by the Supreme Court at the feet of parliament and the Civil Procedure Rule Committee.
The EU’s goal of predictability in jurisdictional matters has been jettisoned by the majority judgment on the issue of the tort gateway. But the predictability of issues of applicable law, and in particular the practical and case management implications of those issues, has also been dealt a blow.
Lord Leggatt’s analysis of how and when foreign law can be pleaded and relied upon marks a subtle but important shift away from the idea that, faced with issues of applicable law, there are steps that the parties ought to take. The emphasis now is on what steps such parties choose to take. The result is likely to be a new opportunity for tactical pleading points. Further, because applicable law often features in questions of jurisdiction, another new layer of uncertainty is added there.
Lord Leggatt’s analysis starts with a useful distinction between what he terms the “default rule” and the “presumption of similarity”.
For my part, I think it preferable in the interests of clarity not to treat the terms “presumption” and “default rule” as interchangeable and to recognise that there are two different rules which are conceptually quite distinct. So too are their respective rationales. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be. By contrast, the “default rule” (as I shall use that term) is not concerned with establishing the content of foreign law but treats English law as applicable in its own right where foreign law is not pleaded.
The “Default Rule”
Having explained the “default rule”, Lord Leggatt then identifies the “obvious objection” to it – that where English private international law specifies that a particular foreign law is to be applied to a case then the court should should apply it. His answer is that the issues in proceedings are defined by the statements of case, and absent a pleaded reliance on foreign law the English court will apply English law.
He justifies that approach on the basis that it embodies a rule of English civil procedure and is thus outside the ambit of Rome II (see article 1(3) of Rome II).
Is it a rule of English civil procedure? Should it be?
Rome II is a directly effective regulation and part of English law. In that respect its status is no different to, for example, section 1A of the Fatal Accidents Act 1976, which prescribes those entitled to claim damages for bereavement. A claim for statutory bereavement damages brought by a mere acquaintance of a deceased person is hopeless because that Act does not permit it. A claim where Rome II unambiguously applies foreign law is equally hopeless where the cause of action under that law is not identified.
There are surely good policy reasons for such claims simply not being entertained by the court at a stage where the prospects of the claim matter – as they do when jurisdiction is being considered.
Lord Leggatt’s rationale at paragraphs 116 – 118 of his judgment appears to be that the “default rule” depends on there being an explicit or implicit agreement between the parties that English law should apply – a situation permitted by Rome II. But what if there is no such agreement because, for example, the claim is being considered in the context of a without notice application for service out of the jurisdiction where the defendant’s position on applicable law is unknown and no defence is available?
If reliance upon the applicable law as provided for by Rome II is merely the claimant’s choice rather than obligation, then the possibility, or probability, arises that claimants will simply tailor their initial claims to bolster their chances in an application to serve out – plead no foreign law, rely on the “default rule” to contend that English law applies and then use the applicability of English law to shore up the position when the court considers forum non conveniens in the application to serve out.
There are answers to this objection:-
- The defendant can always take the point that foreign law applies – true but that may have to occur after the event (the without notice application to serve out) adding cost and complexity. Also the practical reality is that it is easier to stop a stationary ship from sailing than it is to overcome its momentum once it has sailed. And why should the defendant bear the burden of working out whether the claimant has a good claim under the foreign law the Rome II specifies as being applicable in order to decide whether to take the point?
- Claimants will not take such a course when they bear the risk of an unsuccessful application to amend to plead foreign law once its applicability is established. Maybe not, but, again, there will by that stage have been a shift of momentum in the claimant’s favour that could be prejudicial to defendants.
- The claimants will be obliged to disclose the possible applicability of foreign law when applying to serve out. We are not so sure about that. The question of disclosure was touched upon by Arnold LJ in his dissenting judgment in the Court of Appeal at paragraphs 136 – 139. It is not entirely clear that a claimant whose pleading simply says nothing about the applicable law, rather than either asserting the applicability of English law or conceding the applicability of a foreign law – as is now the claimant’s choice – would be under a duty to disclose the possible applicability of foreign law at an application to serve out. We suggest that there should be such an obligation.
The presumption is that where foreign law applies, but there is insufficient evidence of what that law is, the foreign law is assumed to be materially similar to the English law on the relevant issue. Lord Leggatt explains:
As already indicated, that is indeed the basis on which English courts (and courts in other common law jurisdictions) have historically applied domestic law in cases where foreign law is recognised to be applicable but the content of the foreign law has not been proved. Since this presumption is part of the law of evidence, it is also not affected by the Rome I and Rome II Regulations: see OPO v MLA  EWCA Civ 1277;  EMLR 4, para 108.
Lord Leggatt then refers to a number of authorities to demonstrate that the presumption has limits and, at paragraphs 143-147, gives general guidance as to when and how the courts will make the presumption.
The guidance is replete with opportunities for complex and unpredictable legal argument. Is the applicable foreign law derived from the common law or Roman law? Is the English law contended to be applicable derived from statute? What is the procedural context in which the presumption is being considered?
Ominously, Lord Leggatt identifies greater scope for the presumption at an early stage of the proceedings (e.g. an application to serve out). He recognises at paragraph 146 the innate unpredictability of how the court might resolve these questions but does not think that problematic because the parties (the plural is important) can always choose to adduce direct evidence of the content of foreign law.
That might be correct at a stage when both sides have had the time to get that evidence and plead their cases – it has less force in the context of a claimant relying upon it in order to demonstrate an entitlement to serve out at a stage when the defendant’s position may not be clear.
As Lord Leggatt demonstrates by reference to authority, the “presumption” is not new. What is new is its potential importance where jurisdiction is in issue in the context of the majority’s free-for-all approach to the tort gateway and their identification of forum non conveniens as the ultimate deciding factor.
The position is further complicated by Lord Leggatt’s endorsement of what might be described as a cherry-picking approach to foreign law at paragraphs at 150 – 153 of his judgment.
The defendant in Brownlie objected in principle to a claimant pleading the applicability of foreign law, adducing evidence as to its content on the parts it liked, but saying nothing about the parts it didn’t like and using the presumption to rely on English law for those parts. Lord Leggat did not agree but, as a consolation the claimant was at least obliged to plead which parts of her case relied upon foreign law and which relied upon the presumption.
The necessary amendments to the claimant’s pleadings have been permitted at a very late stage by the Supreme Court – when are litigants who make an initial choice not to identify which parts of their case depend on the presumption and which depend on foreign law going to be obliged to plead those matters in future?
Paragraph 148 of Lord Leggatt’s judgment gives helpful guidance as to how foreign law can be proved, and marks a welcome change. Paragraph 148 of his judgment is worth quoting in full.
I would add that it should not be assumed that the only alternative to relying on the presumption of similarity is necessarily to tender evidence from an expert in the foreign system of law. The old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law. On some occasions the text may require skilled exegesis of a kind which only a lawyer expert in the foreign system of law can provide. But in other cases it may be sufficient to know what the text says. If, for example, the question is whether a spouse has a right to claim damages for bereavement under the applicable foreign law, producing a copy of the relevant foreign legislation (with, if necessary, an English translation) is a much more secure basis for a finding than presuming that the foreign law is the same as the English law. Of course, a judge needs to be alert to whether the text relied on is current. But even if that cannot be guaranteed, the presumption of continuity may be a more reliable foundation in the absence of contrary evidence than the presumption of similarity.
There are many often trod areas of foreign law where a common sense approach could make the use of experts the exception rather than the norm. But there are potential pitfalls. What is the evidential status of text that has been “produced”. How can the court be sure that the translation produced is faithful? The less outdated methods of establishing the content of foreign law suggested by Lord Leggatt are not explicitly confined to the production of textual material and the question arises of what other ways might be used to do so. This is an area where the courts are going to have to feel their way forward.
For better or worse it is likely that Brownlie II means that a range of new arguments will be available to the parties at all stages of cross-border litigation. The case management of those claims will have to be tailored accordingly. Even with appropriate case management, the resolution of those arguments will increase the time and cost of the claims. The gauntlet thrown down by the Supreme Court represents a challenge to those with the power to control litigation – are they content for the arguments to be played out over the next few years or should the CPR and relevant legislation be revised to keep the disputes in cross border litigation – and in particular jurisdiction arguments – within proportionate bounds?