In Soriano v Forensic News LLC & Ors [2021] EWCA Civ 1952, the Court of Appeal considered an appeal relating to service abroad in a cross-border claim for libel (and various other things).
It raised issues about s. 9 of the Defamation Act 2013, which contains a special test for jurisdiction over libel claims against defendants domiciled abroad. Essentially, s. 9 is a modified version of the forum conveniens test.
The different features of the s. 9 test don’t really matter for the purposes of this blog post: the key point is that a claimant still has to show a “good arguable case” on jurisdiction.
This blog post looks at the Court of Appeal’s approach to the defendants’ argument that the claimant had to provide expert foreign law evidence identifying an appropriate alternative forum in order to discharge this burden. The first instance judge had decided that expert evidence was not essential.
The Court of Appeal answered this by applying Lord Leggatt’s comments about proving foreign law in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45 in an unexpected way.
Warby LJ started by explaining that the English court would not normally take judicial notice of a foreign law:
As for expert evidence, it is true it is that on conventional principles an English court cannot take judicial notice of foreign law; where disputed, the content of the foreign law must normally be proved as a fact, by expert evidence: Dicey, Conflict of Laws Rule 25.
However, in the absence of expert foreign law evidence, the court could still apply the presumption that English law and foreign law were the same:
In the absence of evidence, the court may apply English law, adopting what is sometimes called “the presumption” that the foreign law is no different: Dicey Rule 25(2), para 9-025.
So far, so normal.
But then Warby LJ said this:
But there are cases in which courts have interpreted and applied foreign law without expert evidence: Dicey para 9-009. And “the recent practice of the English courts suggests that the default application of English law, where foreign law is not proved, is not unqualified”: ibid., 9-026.
The “modern cases”, he said, “show much greater practicality and flexibility in their approach to these principles.” This is “a point that comes up from time to time in libel claims about foreign publication”.
This included drawing inferences about the content of a foreign law where it was sufficiently familiar to the court:
On the other hand, the reality is that English lawyers know or can safely infer quite a lot about some foreign laws. As Sir Michael Tugendhat observed in Ahuja [28], “the law in the USA is, in its broad outline, very well known to English libel lawyers and others…”.
For example, the need to prove “express malice” in US federal defamation cases was
so familiar that before the Judge Mr Price said that “if backed into a corner” he would accept it. Although there was no evidence about US procedural law, Jay J felt able to rely on “common sense” and “sensible inferences” to conclude that California would accept jurisdiction over claims by this claimant against these defendants in respect of all US publication. I can see nothing wrong with that.
Warby LJ then referred to Lord Leggatt’s words in Brownlie about the “outdated” notion that foreign legal materials could only be brought before the court by way of expert evidence. He said:
Lord Leggatt (with whom the other members of the Court all agreed) referred by way of example to the ready availability of legal texts and translations online. But he did not suggest this was exhaustive of the sources of evidence on which a court might draw.
He concluded with the following key comment:
I do not think there can be a single answer to the question of whether either party to a dispute under s 9 needs to adduce expert evidence about the law of one or more foreign jurisdictions. There may be many cases in which that is at least desirable, and some in which it is essential. But there may be cases in which the law can be proved by other evidence, or by inference, or the presumption of similarity can be relied on. All will depend on the facts and circumstances of the particular case.
Comment
With respect to Warby LJ, I am not sure that Lord Leggatt’s comment is really authority for the conclusion he goes on to draw.
In the part of the judgment he quoted, Lord Leggatt was talking about the types of evidence that could be used to prove a foreign law. We wrote about this (and the problems it might cause) in a previous blog post.
By contrast, “inferring” the content of a foreign law based on the court’s own knowledge is not the same thing at all: it is in reality the drawing of conclusions in the absence of evidence.
It gives rise to all sorts of uncertainties.
Specifically, how are litigants meant to anticipate if the relevant principles will be sufficiently well-known to their tribunal that they will just be “inferred”? Does it depend on experienced counsel saying they would have to accept a particular proposition if “backed into a corner”?
Or does it depend on the knowledge and expertise of the particular judge? Do parties need to check whether their judge was at one point a professor in comparative property law? In more familiar terms (to me, at least) could experienced personal injury judges make assumptions about the approach to interest in foreign legal systems where this is familiar to them?
The scope of the role for “inference” in cases involving foreign law was deliberately left open by Warby LJ. It remains to be seen if his interpretation of Lord Leggatt’s words in Brownlie will be cross-applied outside the particular context of cross-border libel actions.