The Commercial Court has just released its 2022 Guide (found here). The new focus on the post-Brownlie approach to foreign law disputes is immediately mentioned in the Introduction:
There are two other areas to which the judges of the Court would particularly draw attention. The first is the consideration which is given to the options available for proving foreign law, reflecting the fact that it is far from always the case that full expert reports and cross-examination of experts are necessary –particularly when the law in question is from a common law jurisdiction …
The various parts of the new Guide dealing with how the Commercial Court will case manage issues of foreign law are detailed and highly instructive. They give a steer on the approach judges will take to case management of foreign law disputes and are essential reading for cross-border practitioners for that reason.
In Section C: Particulars of Claim, Defence and Reply at C1.3(f), the Guide says this:
Any principle of foreign law or foreign legislative provision upon which a party’s case is based must be clearly identified and the basis of its application explained. Parties raising issues which are or may be governed by foreign law should consider the judgment of Lord Leggatt JSC in Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45, at [161]-[166].
(We blogged about that part of Lord Leggatt’s judgment here.)
Section H deals with Evidence for Trial. H3 gives detailed guidance about expert evidence of foreign law, which is so significant that I am going to set it out here in full:
H3.1 Expert evidence of foreign law features in a significant proportion of Commercial Court trials. Foreign law is a matter of fact to be proved by evidence, but CPR 32.1(b)/(c), 35.1, 35.4(1) and 35.5(1) give the Court flexibility in determining how the content of foreign law is proved at trial (see FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45 at [148]).
H3.2 As part of their preparations for any Case Management Conference at which directions for the filing of evidence are to be given, the parties should consider the approach to invite the Court to take to the proof of foreign law where disputed issues of foreign law will or may arise for determination at trial and be ready to discuss that question with the Court.
H3.3 In particular (and without limitation):
(a) The Court can direct an exchange (simultaneous or sequential) of expert reports, an experts’ meeting and joint memorandum, and (if strictly required) supplemental reports following the joint memorandum, from experts to be called to give oral evidence at trial if their evidence is not agreed.
(b) The Court can direct such an exchange of reports (etc), but on the basis that the experts will not give evidence at trial although their evidence is not agreed, or do so only on some of the matters covered by their reports although their evidence on other matters is also not agreed, with the advocates making submissions at trial by reference to the reports and foreign law materials filed.
(c) The Court can limit the expert evidence to identification of the relevant sources of foreign law, and of any legal principles as to the interpretation and status of those sources, with the advocates making submissions at trial as to the relevant content of foreign law by reference to the sources thus identified.
(d) In some cases, the Court may be prepared to take judicial notice, or accept the agreement of the parties, as to the nature and importance of sources of foreign law, and have the advocates make submissions at trial as to the relevant content of foreign law by reference to the sources thus identified,
providing the source materials from their own researches.H3.4 In determining the approach to adopt, factors relevant to the Court’s decision
include:(a) How much of the content of the relevant foreign law is in issue (as distinct from its application to the facts of the case, which is for argument not evidence).
(b) How important those points of difference are to the issues to be determined at trial.
(c) The time and cost efficiency of different approaches (particularly having regard to the amount in issue in the proceedings which is affected by the issues of foreign law).
(d) The nature of the issues and the legal sources in issue. For example, the approach in H3.3(c) or H3.3(d) may be more appropriate when the foreign law issues relate to a common law system or a system of law with which the Court has familiarity from other cases.
(e) Whether there is already an English law decision on the relevant point of foreign law (which is admissible under s.4 CEA 1972).
H3.5 The parties will often have retained foreign lawyers to advise them on the issues of foreign law which arise. It will not always be necessary to instruct a separate foreign law expert to provide the expert evidence. The parties should consider this when considering with each other how foreign law is to be proved, and be ready to discuss the issue with the Court at the Case Management Conference.
H3.6 It will be open to the Court at the Case Management Conference to defer any decision on whether, and on what issues, the experts are to give evidence at trial to a later hearing.
H3.7 Where there is a Pre-Trial Review, and directions have previously been given for there to be oral expert evidence of foreign law at trial, the parties should consider and be ready to discuss with the Court whether such evidence is still reasonably required.
It is also worth noting the indication at H2.17 that the preference in foreign law disputes is for sequential exchange of reports:
The experience of the Court is that sequential exchange is often particularly effective for expert evidence of foreign law or from forensic accountants.
Bonus Points
A couple of bonus points for anyone who has made it this far.
The first is a health warning for claimants (and a particularly quotable extract for defendants) lurking at B8.3 on Service of the claim form out of the jurisdiction:
Service of process in some foreign countries may take a long time to complete; it is therefore important that solicitors take prompt steps to effect service. An application to extend time for service should be made promptly as soon as it is apparent that service is likely not to be effected within time, and should not be left until the end of the period of validity for service.
Lastly, anyone looking for practical guidance on serving out of the jurisdiction would be well advised to have a look at the detailed steps set out in Appendix 9 to the Guide. But bear in mind that these are tailored to the Commercial Court specifically, so not all the steps will apply in every case.
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