Today’s blog considers a short but useful decision at a pre-trial review in Suppipat v Narongdej [2022] EWHC 1806 (Comm) (available on Westlaw).
This is apparently the first decision applying the detailed provisions of the new Commercial Court Guide on foreign law evidence which we covered in a separate blog post.
Calver J said that it was “essential” for parties litigating in the Commercial Court (and presumably other courts) to follow the new guidance:
Section H.3 of the 11th Edition of the Commercial Court Guide contains new provisions concerning the way in which the content of foreign law is to be proved at trial. It is essential that all parties in a case proceeding in the commercial court, where issues of foreign law arise, now give careful consideration to this section of the Guide as a matter of course.
The judge referred to the guidance that the parties should be ready to discuss at a pre-trial review whether oral expert evidence of foreign law would in fact be needed at the trial. This he had “accordingly done with the advocates in this case.”
The judge then took a split approach, with tailored rulings on the need for oral evidence relating to Singaporean law on the one hand and Thai and Chinese law on the other:
The legal system of Singapore has its origins in the English common law system. English Judges are well used to reading, analysing and applying (if appropriate) Singaporean case-law and statutory provisions, without the need for expert evidence on Singapore law. Provided the English Judge is supplied with the key sources of Singapore law which are relied upon (and, if necessary, any legal principles as to the interpretation and status of those sources), and with the benefit of the expert reports which have already been served, then the parties’ advocates should confine themselves to making legal submissions at trial as to the effect of Singapore law, without the need to call oral expert evidence of Singapore law. This has the added advantage of freeing up some additional time in the trial timetable.
And, whilst it was appropriate for the parties to rely on oral expert evidence of Thai law and Chinese law at the trial, this did not mean that the parties could simply sit back and leave everything to their experts:
I should add that whilst, in contrast, it is appropriate for the parties to call experts to give oral evidence at trial of Thai law and Chinese law (having exchanged expert reports), in order to assist the Judge with his pre-reading before the experts are called to give evidence, the parties should identify in a short written note for the benefit of Judge which Thai or Chinese law cases and statutory provisions it is essential for the Judge to pre-read (being central to the dispute between the relevant experts), rather than leaving the judge to read through the entirety of the voluminous expert reports in order to identify them for himself.
The key takeaway is the importance accorded by the judge to the new Guide and the flexible approach that it advocates. The decision also emphasises the need for proactivity on the part of the lawyers in considering (and reviewing) what the issues are, what evidence the court needs to resolve them, and how that evidence is best deployed with an eye on minimising the strain on judicial time and resources.