Application of Foreign Law in English Courts

In legal proceedings in English Courts, foreign law must be proved in English Courts as a fact, in the same way as any other allegation of fact. English Courts are not competent to construe or interpret foreign law. The force and effect of foreign law in English litigation is presented to courts in business disputes and other litigation by way of expert evidence. Ultimately, it is for the judge to determine the effect of the foreign law on the facts of the case.

An expert in the foreign law is required to produce the contents of the foreign law, such as legislation and unwritten law; explain how a court in the foreign jurisdiction would interpret and apply the provision on the facts before the judge in English litigation; and where available, produce relevant authorities and their status within the overseas jurisdiction.  There is no necessity that the expert is a lawyer in the relevant jurisdiction, provided that they are otherwise appropriately qualified to the satisfaction of an English court.

Expert Evidence

An expert will be entitled to express an opinion in respect the application of a foreign law in the particular case. Expert evidence of a foreign custom or usage need not be admitted by an expert, but rather someone familiar with the fact in the question. It is the responsibility of an expert to provide the judge with the necessary scientific criteria for testing the accuracy of conclusions, to enable the judge to form their own independent judgment of these criteria to the facts proved in evidence. Experts owe their duty to the court first and their clients second.

Status of Foreign law in English Courts

When a claimant commences proceedings in England which involves questions of foreign law, the foreign law must be proved formally by evidence. For instance, US law must be proved as a fact. Evidence of foreign law is obtained through experts familiar with foreign law. The Court of Appeal in MacMillan Inc v Bishopsgate Investment Trust held that the function of the expert witness on foreign law was to:

1. inform the Court of the content of the foreign law, including identification of statutes and/or other legislation and explaining the foreign court’s approach to its interpretation;
2. the attention of the court to judgments and other authorities, explaining the status as sources of the foreign law;
3. state where no authority exists precisely on a point, to assist the English judge in making a finding as to what the foreign court’s ruling would be if the matter was to arise in litigation there.

Impartiality under the Civil Procedure Rules

An expert is limited to assisting the court to matters within their expertise. This duty overrides any obligation to the litigants, and any other person. The duties of the expert to the court are summarised in The Ikarian Reefer (1993):

1. The expert evidence presented to the court should be and be seen to be the independent product of the expert influenced as to the form or content by the any particular requirements of litigation.
2. The expert must provide independent assistance to the court in an objective and unbiased opinion, in relation to matters within their expertise.
3. A report should state the facts and assumptions upon which their opinion is based. Omission of material facts which could detract from the concluded opinion effect the credibility of a report.
4. An expert should be quite clear when a question is outside their expertise.
5. If insufficient data is available to the expert when preparing their report, that must be stated in the report. This should be coupled with a statement that their conclusions and opinions are provisional. If the expert cannot assert in their report that it contains the truth the whole truth and nothing but the truth without some qualification, the report must state that qualification. If the expert omits a relevant point, they should expect to be criticised by the court for it.
6. If reports are exchanged during the course of proceedings, which results in the expert changing their view on a matter (or any other reason), that change in view must be communicated by the expert to the court (through legal representatives).

The expert materials relied upon should be included in the report to promote its probity.

Role of the Expert; Performance of Brief

So, the role of the expert is to predict the decision of the foreign court, laying out the legal reasoning and authorities in doing so. The expert is able to give evidence as to the process by which they have reached their conclusions, which will rely on a body of knowledge, textbooks, articles, publications and authorities.

An expert’s instructions are not protected by legal professional privilege.

The expert’s report must contain:

1. a statement that they understand their duty to the court and that they have complied with the that duty, such as “I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and the opinions I have expressed represent my true and complete professional opinion”;
2. the substance of all information, whether written or oral, which forms the basis of the report.

Parties who wish to rely on expert evidence must obtain the permission of the court, and identify the field in which it intends to rely on expert evidence.

In Closing

Our business lawyers represent clients from a variety of countries. Foreign law has played a key part in the resolution of disputes before English Courts in our work. We assist our clients resolve international business disputes through English Courts, and have advised upon and prepared evidence of foreign law for consideration of English Courts to determine disputes and move on to enforcement of judgments.