Richard Hermer QC (sitting as a High Court Judge) recently gave some helpful practical guidance on how the English courts approach the interpretation of foreign legal materials (for example, building regulations) in Deane v Barker & Ors  EWHC 1523 (QB).
The judgment is particularly useful for its clear pointers to lawyers about how an English judge will approach this exercise and what the lawyers are expected to do.
This was actually a decision on the trial of three preliminary issues concerning whether Spanish building regulations applied to a staircase in a Spanish villa on which the Claimant had fallen. The judge was unimpressed that the preliminary issues turned out not to have saved much by way of time and expense.
However, the focus of this blog post is not on the need for the parties and the court to ensure that preliminary issues are truly conclusive of some part of the case (perhaps a particular danger in cases involving disputed foreign laws).
We are more concerned with the judge’s general guidance on how the court will normally expect to interpret and apply a foreign applicable law.
The starting point is that parties who rely on any foreign legal provisions should provide translated copies of these to the judge:
Where the parties agree, or it has been decided, that foreign law governs a claim (or an aspect of a claim) the Court would ordinarily expect to be furnished with accurate copies of the relevant laws and evidence as to the relevant foreign law rules of interpretation (or agreement that they are the same as our own). Whereas it was once thought necessary for such evidence to be received through reports of duly qualified experts, that is no longer the case (if indeed it ever truly was).
In Deane, there was no dispute about the contents of the relevant law. The dispute was about what certain clauses meant. This is the situation in which assistance from a foreign legal expert may be important:
The relevant enactments having been identified, the next step, often but not necessarily with the assistance of an expert(s), is to understand the rules of interpretation or construction that a foreign court would apply in order to ascertain their meaning and application to the facts of the case.
The English judge needs to be given a clear understanding by the foreign legal experts of the methodology a foreign court would use to interpret the provisions:
If the English Court is being asked to assess how a foreign court would interpret a particular provision of their law, it is axiomatic that it will need to understand what the relevant ‘tools of interpretation’ are. The provision of the relevant rules of construction also equips the court with the means of understanding and assessing the evidence given by the expert witness.
That involves an assessment by the foreign legal experts of the extent to which such sources would be taken into account by the foreign court when interpreting the disputed clauses and the relative weighting that would be accorded to them.
Absent such evidence, it might be open to the court to simply adopt a presumption that the foreign courts would apply the same techniques of interpretation as the English court. This was actually a suggestion of Lord Leggatt in Brownlie II. But the preferable course of action where foreign legal experts are already instructed is for them to deal with the principles of interpretation fully in their reports.
Adopting this analysis allowed Richard Hermer QC to give the following mini-judgment on the Spanish rules of interpretation (which directly influenced his rulings on the disputed clauses):
Firstly, the starting point is to seek to ascertain whether the words are clear and unambiguous, in other words whether they bear a plain meaning. If they are, then the plain literal meaning must be applied.
Secondly, if the words are ambiguous (including, for example, because a literal meaning would lead to an absurd outcome) then the Court can resort to additional tools of construction, here those identified in Article 3 of the Civil Code as explained and elaborated on by the experts.
Thirdly, these principles broadly reflect our own approach to statutory construction, not least the primary search for a ‘plain meaning’ which would also be recognised in very many jurisdictions. As Lord Steyn said in R v A (No.2) 2001 [UKHL] 25 at 41.
“It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it…”
Accordingly, in assessing the meaning and effect of the disputed provisions in this claim I will first seek to ascertain whether or not the words bear a plain meaning. If they do, then I will apply that meaning to the facts before the Court. Only if they do not will I seek to ascertain their proper meaning by identifying and applying other Spanish law tools of construction.