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N7: Foreign Law

Question of fact to be proved by evidence

 

"[2] Dicey Rule 25 is in the following, familiar terms:
(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means.
(2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case.
[3] The footnote to Rule 25(2) reads as follows: "This Rule was explicitly approved in Bumper Development Corp. v Commissioner of Police of the Metropolis [1991] 1 W.L.R. 1362, 1369 (CA). However, for qualifications to the absolute form of the Rule, see further below, para.9-026."

Dicey para.9-025 states correctly that the burden of proving foreign law lies on the party who bases a claim or defence upon it and expresses the view that "… it is better to abandon the terminology of presumption, and simply to say that where foreign law is not proved, the court applies English law." A little care therefore must be taken when reading Dicey Rule 25(1), lest it be thought to suggest that whenever a claim is governed by foreign law, it is necessary for the claimant to plead and prove the material content of that law (or indeed, as a logically prior matter, to plead a case as to governing law at all). I am quite clear that is not the law." (Iranian Offshore Engineering and Construction Company v. Dean Investment Holdings SA [2018] EWHC 2759 (Comm), Andrew Baker J)

Expert evidence not necessarily required

"[148] I would add that it should not be assumed that the only alternative to relying on the presumption of similarity is necessarily to tender evidence from an expert in the foreign system of law. The old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law. On some occasions the text may require skilled exegesis of a kind which only a lawyer expert in the foreign system of law can provide. But in other cases it may be sufficient to know what the text says. If, for example, the question is whether a spouse has a right to claim damages for bereavement under the applicable foreign law, producing a copy of the relevant foreign legislation (with, if necessary, an English translation) is a much more secure basis for a finding than presuming that the foreign law is the same as the English law. Of course, a judge needs to be alert to whether the text relied on is current. But even if that cannot be guaranteed, the presumption of continuity may be a more reliable foundation in the absence of contrary evidence than the presumption of similarity.
[149] The essential point is that the presumption of similarity is only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence. When English courts are prepared in some cases to draw conclusions about the content of foreign law on such an indirect basis, it makes no sense to reject better, direct evidence when it is available just because it lacks the imprimatur of an expert witness." (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

Question of fact to be proved by evidence

Special category of fact (appeal court may be more able to intervene)

 

"[10] The starting point is that findings in relation to foreign law are findings of fact because a judge is not to be imputed to know foreign law: Nelson v Bridport (1845) 8 Beav 527; 50 ER 207. Absent agreement between the parties, foreign law is proved by suitably qualified experts in the relevant foreign law. Nonetheless, such findings of fact are in a special category. Judges frequently quote the dictum of Cairns J in Parkasho v Singh [1968] P 233, p 250 that “the question of foreign law, although a question of fact, is a question of fact of a peculiar kind”. Findings of fact as to foreign law are in a special category in part because, in certain circumstances, in particular when the foreign law is a common law system analogous to the judges’ domestic law, the judge at first instance and the judges in the appellate courts can use their legal skills and experience in the analysis of domestic law to analyse the foreign law. In such circumstances the appellate judges are not at any significant disadvantage in carrying out that analysis compared with the trial judge. While the circumstances of cases may vary widely, the Board derives some propositions from the case law." (Perry v. Lopag Trust Reg [2023] UKPC 16)

Special category of fact (appeal court may be more able to intervene)

Determine what the highest relevant court in foreign system would decide

 

"First, the task of the trial judge when there are disputed questions of foreign law is to determine what the highest relevant court in the foreign legal system would decide if the point were to come to it: Dexia Crediop SpA v Comune di Prato [2017] EWCA Civ 428[2017] 1 CLC 969 (“Dexia”), para 34; Morgan Grenfell & Co Ltd v SACE Istituto per I Servizi Assicurativi del Commercio [2001] EWCA Civ 1932 (“Morgan Grenfell”), para 50. It is not sufficient for a party to identify a judgment of a foreign court of first instance which may be on point and assert that the task of the appellate court is simply to analyse that judgment." (Perry v. Lopag Trust Reg [2023] UKPC 16)

Determine what the highest relevant court in foreign system would decide

Foreign law is common law: Judge to use own knowledge of common law system

 

"Secondly, if the foreign legal system is a common law system which adopts a similar approach to legal reasoning and statutory interpretation to that of English law, the English judge at first instance is entitled and required to bring to bear his or her knowledge of the common law and the rules of statutory construction in analysing the foreign law. So too is the appellate court. In MCC Proceeds Inc v Bishopsgate Investment Trust plc [1999] CLC 417 (“MCC Proceeds Inc”), a case concerned with the construction of the Uniform Commercial Code which was part of the law of New York, a common law system, Evans LJ giving the judgment of the Court of Appeal stated (para 13):
“When and to the extent that the issue calls for the exercise of legal judgment, by reference to principles and legal concepts which are familiar to an English lawyer, then the [appellate] court is as well placed as the trial judge to form its own independent view.”

The important words in that statement are “to the extent” and the reference to familiar principles and legal concepts. The court went on to state that it was not entitled to substitute its own view for the view of the trial judge when there was acceptable evidence to support the judge’s finding unless the English court interprets the statute in accordance with English rules of construction and there is no evidence that different rules would govern the foreign court’s construction or evidence that the words would have a special meaning in a foreign context (para 20). The Court of Appeal in Dexia cited these passages in MCC Proceeds Inc with approval (paras 38 and 39). The Court of Appeal in Dexia also quoted from the judgment of the Court of Appeal in Morgan Grenfell paras 50 and 51, in which the court observed that where the court was faced with differing views as to Italian law, which was not based in any relevant aspect on the common law, there was less room for the judge to apply his or her own legal training and experience to help to resolve the relevant question.(Perry v. Lopag Trust Reg [2023] UKPC 16)

Foreign law is common law: Judge to use own knowledge of common law system

Appeal court reluctant to intervene if foreign language and/or not common law

 

"Thirdly, where the foreign law is in a foreign language the trial judge will often be dependent on translations of the relevant texts, which may or may not be precise and which may or may not be disputed, and on the evidence of the foreign law experts to understand the meaning and nuances of the foreign language in the relevant text. Thus, in Byers v Saudi National Bank [2022] EWCA Civ 43[2022] 4 WLR 22 (“Byers”), the trial judge had to address questions of Islamic law, of which the only authorised texts were in Arabic, and he had to work with translations and with the assistance of foreign law experts. The Court of Appeal concluded that it should be slow to interfere with the judge’s findings of fact on Saudi Arabian law and should do so “only … in accordance with the principles applicable generally to findings of fact made by a trial judge who has based his findings on evidence from witnesses” (para 105). In reaching that view the Court had regard to the foreign language of the authorised texts, the fact that the concepts and principles of Saudi Arabian law were far removed from the common law, the lack of any familiarity of the English courts with the practice and culture in the capital markets of Saudi Arabia, and the fact that the judge at first instance had depended on the assistance of extensive expert evidence to explore and explain the many Saudi Arabian court decisions to which the experts referred in support of their contentions." (Perry v. Lopag Trust Reg [2023] UKPC 16 - applied to Israeli matrimonial law [38] and Liechtenstein trusts law [45])

Appeal court reluctant to intervene if foreign language and/or not common law

Approach to evaluating expert evidence depends on nature of foreign law

 

"[14] Fourthly and more widely, where the first instance judge is dependent upon the evidence of foreign law experts, who disagree as to the interpretation and application of a foreign law, and has to decide issue by issue whose evidence to prefer, the judge will have regard to all the evidence presented to him. The judge will reach a view based on an assessment of each expert having regard to each expert’s evidence as a whole, and the way in which each expert answered the questions posed in chief and on cross-examination to justify his or her opinions. The judge will thus evaluate the experts’ reasoning. Not all the matters which have influenced the judge in forming a view on which evidence to prefer will always be recorded in any detail in a judgment or can be ascertained from reading a transcript of the proceedings. The judge will have regard to “the whole of the sea of evidence presented to him whereas an appellate court will only be island hopping”. Those words of Lewison LJ in FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5[2014] FSR 29, para 114, are in such circumstances as applicable to a case involving expert evidence on foreign law as they are to cases involving the evidence of witnesses of fact more generally. See the judgment of Longmore LJ in Dexia at para 42.

[15] There is thus a spectrum of circumstances in which the principal variable is the degree to which the judge can use his or her skill and experience of domestic law and of the domestic rules of statutory interpretation to ascertain the foreign law and apply it to the case in question. For example where a judge is an English lawyer, at one end of the spectrum there are cases in which the foreign law is a common law system which applies the same or analogous principles and means of legal analysis as English law. In such cases there will be considerable scope for the trial judge to bring to bear his or her legal skills and experience in domestic law in determining and applying the foreign law. The judges of a court hearing the first appeal will also be able to bring to bear their own skill and experience. In such a circumstance the members of the Board also would be able to do so and would be unlikely to invoke the practice relating to concurrent findings of fact. At the other end of the spectrum are cases of disputed foreign law in which the skill and experience of the judge in domestic law has a minimal role to play in the ascertainment and application of foreign law, as in Byers. In such cases the court at each level of the hierarchy is dependent on the written and oral evidence of expert witnesses, tested by cross-examination. The trial judge’s findings on the content and application of foreign law have a close kinship to other findings of fact. In that circumstance the first appellate court will be slow to intervene in the judge’s assessment and the Board’s practice in relation to concurrent findings of fact should be adopted." (Perry v. Lopag Trust Reg [2023] UKPC 16)

Approach to evaluating expert evidence depends on nature of foreign law

No default rule that Court will apply English law in the absence of proof of foreign law

"[117]...I cannot accept that it is consistent with legal principle, however, to apply English law by default if the party who has the burden of proving that it has a good claim or defence under foreign law fails to do so. An English judge does not in that event still have to adjudicate - if by that is meant decide the case by applying a system of law (English law) which has been shown not to be applicable. Rather, the ordinary consequence must follow that, if a party fails to prove its claim or defence, the claim is dismissed or the defence rejected. Where it is asserted and established that the applicable law is a foreign system of law, there is simply no scope for applying English law in its own right." (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

If neither party contends foreign law applies, English law

"[162] The claimant has applied for permission to cross-appeal on the ground that the Court of Appeal was wrong in principle to make this order. It is submitted that, at least until the defendant pleads a defence relying on particular rules of Egyptian law, the claimant is entitled to rely on the presumption in relation to all her claims and should not be required to plead a substantive case under foreign law first.

[163] This argument misunderstands the nature of the presumption, which again needs to be distinguished from the default rule. If it is realistic to suppose that the defendant might be content for the court to apply English law by default and the claimant would prefer this, a claimant may choose when commencing proceedings not to assert that the claim is governed by foreign law, even if under the relevant rules of private international law that would be the case, and simply to plead a claim based on English law. If the defendant does not respond by pleading that foreign law is applicable, the defendant may find that the time comes when it is too late to raise such a case - as happened, for example, in Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 1900 (Comm); [2006] 2 Lloyd’s Rep 629, para 433, and Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA [2018] EWHC 2759 (Comm); [2019] 1 WLR 82. If, however, the defendant pleads (or it is clear at the outset that the defendant intends to plead) that foreign law is applicable, the claimant must decide whether to contend otherwise and whether to advance a claim for relief under foreign law." (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

If a party chooses to rely on foreign law, must plead the rules and provisions relied on

"[164] In the present case it is agreed that the law which the court must apply is the law of Egypt and the claimant has amended her claim form and particulars of claim to claim damages pursuant to Egyptian law.
[165] At that point it was, and is, incumbent on the claimant to specify in her statement of case any rules or provisions of Egyptian law on which she intends to rely so that the defendant knows in outline the case it has to meet. A claimant does not have to rely on any rules or provisions of foreign law: parties are entitled, if they choose, simply to rely on the presumption that the foreign law is materially similar to English law. But reliance on the presumption does not alter the ordinary rules of pleading. If a claimant chooses not to plead a case based on any specific rules of the foreign law, hoping to be allowed to do so later if it becomes expedient, the claimant takes the risk of needing to persuade the court at a future date to grant permission to amend - just as in any other situation where a party seeks to change its case. There is no special dispensation for a party who has previously chosen to rely solely on an evidential presumption.
[166] In this case the claimant has served two reports from an expert on Egyptian law which refer to rules of Egyptian law that are not currently pleaded. It is also unclear whether, where there are gaps in her evidence of foreign law, the claimant intends to fill those gaps or to continue to rely solely upon the presumption of similarity with English law. The defendant is entitled to know where the claimant stands on those matters. In these circumstances the direction made by the Court of Appeal requiring the claimant to plead her case on Egyptian law seems to me to be not merely well within the generous ambit of the court’s case management powers, but thoroughly desirable for the orderly progression of these proceedings. I would therefore dismiss the cross-appeal on this point." (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

No default rule that Court will apply English law in the absence of proof of foreign law

But there is a presumption of similarity

 

"[122] These arguments, in my view, would have force if the presumption were inflexible and applied in circumstances where there is good reason to think that the applicable foreign law is different in a material respect from English law. However, that is not and has never been the effect of the presumption. The common law has never required unrealistic or unreasonable assumptions to be made about the content of foreign law. Where it applies, the presumption of similarity is justified by a combination of three factors.
[123] First, while there are of course many differences between the laws of different countries, there are also often similarities. That is most obviously true where the laws have a common origin, as in the case of countries which apply the common law. While there is a natural tendency for the laws of such countries to diverge over time, that tendency is reduced by the respect which courts in common law jurisdictions afford to decisions of the courts of other common law countries as persuasive authority on the content of their own law. Even where the foreign system of law is a civil law system with its historical roots in Roman law, there is often good reason to expect that the foreign law will provide the same answer to a legal question, even if the result is reached by a different legal route. Such parallels have been enhanced where international conventions aimed at harmonisation of laws have been adopted, mainly in areas of commercial law. In Muduroglu Ltd v TC Ziraat Bankasi [1986] QB 1225, 1246, Mustill LJ observed that “in so many practical respects there is insufficient difference between the commercial laws of one trading nation and another to make it worth while asserting and proving a difference”. This same insufficiency of difference will often make it reasonable to start from an assumption that the applicable foreign law is likely to be materially similar to English law.
[124] The requirement of materiality is the second factor which it is important to keep in mind. Unless there is a real likelihood that any differences between the applicable foreign law and English law on a particular issue may lead to a different outcome, there is no good reason to put a party to the trouble and expense of adducing evidence of foreign law. The object of adjudication is not to achieve a goal of abstract legal purity but to do practical justice between the parties. Moreover, unlike decisions applying English law which may be relied on as precedents in later cases, where foreign law applies there is no larger purpose to be served beyond reaching the correct result in the instant case.
[125] A third important factor is that the presumption of similarity does not itself determine any legal issue. It only ever operates unless and until evidence of foreign law is adduced. Nor does the presumption alter the legal burden of proof. Where the presumption applies, it merely places the burden of adducing evidence on a party who wishes to displace it. It is always open to a party to adduce evidence of the applicable foreign law showing that it is in fact materially different from English law on the point in issue." (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

"[252] In any event, our view is that it is appropriate to apply the rule of evidence set out in the authorities and adopted in the courts, namely, that if neither party pleads and proves what the potentially applicable foreign law is, the court or tribunal can apply English law. This is an established principle, although the authorities refer to it as a flexible rather than an inviable rule which, as stated in Dicey and Morris, has been held not be applicable in cases where it would be “wholly artificial” to apply rules of English law to an issue governed by foreign law." (Alpha International Accommodation Ltd v. HMRC [2017] UKFTT 778 (TC), Judge Morgan)

But there is a presumption of similarity

Limits of the presumption

"[126] These factors provide good pragmatic reasons for applying the presumption in a range of cases, but they also determine its proper limits. There is no warrant for applying the presumption of similarity unless it is a fair and reasonable assumption to make in the particular case. The question is one of fact: in the circumstances is it reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue (meaning that any differences between the two systems are unlikely to lead to a different substantive outcome)?" (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

"[64] According to Dicey & Morris, op. cit, para. 9 - 025, where a party adduces no evidence or insufficient evidence of foreign law, the court applies English law and there is only one true exception to this principle, that is in a trial for bigamy where the first marriage was contracted abroad. In the opinion of Dicey & Morris, it is not clear that there is a further exception where the question is purely one of statute law. However, it is apparent that there are other exceptions apart from those which Dicey & Morris cites. For instance, the court does not apply English law to a foreign transaction to which it would not otherwise be applicable simply because a party fails to prove the applicable foreign law in a situation where English law creates some special institution: see the obiter dictum of Roskill L.J in Osterreichische Landerbank v S'Elite Ltd. [1981]1 QB 565, 569 (fraudulent preference). Nor does the principle apply in prosecutions generally in respect of acts committed abroad where the acts in question may be lawful under the law of the place of performance. Nor need the principle be applied in proceedings for summary judgment: National Shipping Corporation v Arab [1971] 2 Lloyd's Law Rep. 363. In certain circumstances, the court does not apply the principle where it is asked to construe a document governed by foreign law. These authorities show that the principle is not applied inflexibly. For a discussion of the exceptions generally, see Fentiman, Foreign Law in English Courts (1998) (Oxford), chapters III and IV, and Trevor C Hartley, Pleading and Proof of Foreign Law: The Major European Systems Compared (1996) 45 ICLQ 271. We further note that in Carl Zeiss Stiftung v Rayner Keeler Ltd. (No. 2) [1967] 1 AC 853, Lord Wilberforce described the principle as one “never more than a fragile support” in the context of an issue as to the effect of a foreign judgment where its effect under foreign law was not proved." (Shaker v. Al-Bedrawi [2002] EWCA Civ 1452 Peter Gibson LJ)

"[4] The explanation of Rule 25(2) as simply a default rule, that where foreign law is not proved the court applies English law, is then the immediate context for the opening statement in para.9-026 that, "Even so, there will still be cases in which the application of English law … will be just too strained or artificial to be appropriate." A discussion follows of some examples taken from decided cases, the views being expressed that they "do not yet offer precise guidance as to when this point will be reached" (para.9-026) and that "… there are cases in which the default application of a rule of English law is simply too problematic to be appropriate, but that apart from the fact that the court should not 'invent' a rule of English law to be applied in default of proof of foreign law, no sharp line exists to define the limits of the principal that in default of sufficient proof, foreign law will be taken to be the same as English law" (para.9-029)." (Iranian Offshore Engineering and Construction Company v. Dean Investment Holdings SA [2018] EWHC 2759 (Comm), Andrew Baker J)

Presumption more likely to be appropriate for common law system

"First, for reasons already given, as a matter of broad generalisation the presumption is more likely to be appropriate where the applicable foreign law is another common law system rather than a system based on Roman law. There are, however, “great and broad” principles of law which are likely to impose an obligation in all developed legal systems."  (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

Less appropriate where relevant domestic law is contained in a statute

"Second, also as a matter of broad generalisation, the presumption is less likely to be appropriate where the relevant domestic law is contained in a statute, but this depends on the nature of the statute and, more specifically, the relevant statutory provision. There is a difference between a statute which codifies general principles and one which introduces a local scheme of regulation. The fact that the events in question are not actually within the scope of the domestic statute, for example because it does not have extraterritorial effect, is not a bar to relying on the presumption - as the question is not whether the domestic statute itself applies but whether it is reasonable to presume, unless and until the contrary is shown, that the foreign system of law contains a materially similar rule. That may depend upon the particular aspect of the statutory rule on which a party is seeking to rely. To take an example, it might be reasonable to presume that, if death is caused by a wrongful act of the defendant, the foreign law will make provision for a claim for damages for bereavement. It also seems likely, however, that the extent of such provision will vary from one legal system to another. So, whereas it might be reasonable to presume that the spouse of the deceased is entitled to claim such damages, it might be hard to argue that, for example, the right of action should be presumed to extend - as it now does under section 1A of the Fatal Accidents Act 1976 in the UK - to a cohabiting partner of the deceased."  (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

Provision of English company law applicable to English companies only and creating a special situation

"[67] The starting point must be that not every English statute is to be applied to a transaction because a party has either chosen not to prove or failed to prove the law which is otherwise applicable. On the face of it, Part VIII is inapplicable to a company not registered under the Companies Acts. Thus the judge was correct to seek to satisfy himself that Part VIII did not represent some merely domestic rule of English law. He did so by asking whether the requirements of Part VIII with which he was concerned represented a generally applicable rule of company law. As we have said, Mr Lyndon-Stanford has made his submissions on the basis that this requirement has to be met and we are content also to accept that as the test in the circumstances of this case. However if a rule of English statute law has to be adapted in the way explained above before it can apply, then, although it is not necessary to express a final view on this point on this appeal, it may well be that that factor alone is a sufficient indication that the case falls within the class of case where English statute law creates some special institution and thus cannot be applied simply because a party has failed to prove the relevant foreign law." (Shaker v. Al-Bedrawi [2002] EWCA Civ 1452 Peter Gibson LJ)

More scope to rely on presumption at early stage of proceedings (e.g. prospect of success)

"[147] Fourth, the procedural context in which the presumption is relied on matters. Self-evidently, there is more scope for relying on the presumption of similarity at an early stage of proceedings when all that a party needs to show in order to be allowed to pursue a claim or defence is that it has a real prospect of success. By contrast, to rely solely on the presumption to seek to prove a case based on foreign law at trial may be a much more precarious course.

...

[157] In the absence of any evidence of Egyptian law, I would see no basis for challenging the decision of the judge that, at this stage of the proceedings, reliance on the presumption of similarity with English law is sufficient to show that the pleaded claims have a real prospect of success. While the precise nature and extent of the obligations owed will no doubt vary from one legal system to another, I agree with McCombe LJ in his judgment in the Court of Appeal (at para 62) that it seems reasonable to presume for the purpose of showing a serious issue to be tried that under any system of law a hotel operator who enters into a contract with a customer to take the customer and members of her family on an excursion in a chauffeur-driven car provided by the hotel will owe obligations under the contract and/or under the law of tort to ensure the safety of those concerned. The judge’s view that the presumption could be relied on for this purpose is in any event an evaluative judgment with which an appellate court should be slow to interfere." (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

Limits of the presumption

Inadequate evidence of foreign law

 

Presumption can be relied on, if appropriate

 

"[150] Unlike many cases in which a party seeks to rely on the presumption of similarity, the court in the present case has evidence of the applicable foreign law in the form of reports from experts on Egyptian law served by each party. The defendant argues that it is not permissible in such circumstances for the claimant to rely on the presumption of similarity with English law where there are gaps or shortcomings in the expert evidence.
[151] I see no reason why there should be any general rule to that effect. Inevitably, adducing direct evidence of foreign law narrows the potential for relying on the presumption; but whether it eliminates the potential for doing so altogether must depend on the circumstances. For one reason or another, the evidence tendered by the parties may be incomplete. A party or its expert may not have anticipated every point of foreign law which may arise in relation to a particular issue; or a party might consider it unnecessary or disproportionate to adduce evidence of foreign law on a particular matter and choose instead to rely on the presumption. There is no principled reason why reliance on the presumption should be prevented in such circumstances. A common example of a situation where evidence of foreign law is incomplete and where reliance on the presumption may be entirely appropriate is where the court is provided with the text of a foreign statute but does not have evidence either of how the particular statute, or statutes in general, would be interpreted by the foreign court. In such a situation it is often reasonable for the court to presume, in the absence of contrary evidence, that the foreign court would apply similar principles of statutory interpretation to an English court.
[152] That is not to say that there cannot be circumstances in which it would be procedurally unfair to allow a party who has advanced a case based on foreign law and adduced evidence of foreign law in support of that case to invoke the presumption when this evidence proves inadequate. An example of such a case is Tamil Nadu Electricity Board v ST-CMS Electric Company Private Ltd [2007] EWHC 1713 (Comm); [2007] 2 All ER (Comm) 701, cited by counsel for the defendant. In that case the court was asked to determine questions of Indian law with the assistance of expert evidence. During the hearing, the claimant applied for permission to raise a new point of Indian law which had not been addressed in the experts’ reports and to introduce additional evidence of Indian law on this new point. Cooke J refused the application for case management reasons in circumstances where a list of issues had been agreed at the court’s direction, of which this issue did not form part. Unsurprisingly, having refused to allow the new point to be raised, the judge also refused to allow the claimant to argue the point as one of English law relying on the presumption of similarity..." (FS Caire (Nile Plaza) LLC v. Lady Brownlie [2021] UKSC 45)

Inadequate evidence of foreign law

FTT proceeding without expert evidence

 

"[111] Questions of foreign law are questions of fact for the Tribunal.  By way of example, in Lazard, the Special Commissioners at first instance had found as a fact that under the law of Maryland the dividend was capital in nature, see the judgment of Lord Reid at page 25.  Similarly, in this case it is for the Tribunal to determine whether the Special Dividend paid under Delaware law was income, capital, or part income and part capital.   

[...]

[113] Neither party sought to rely on expert evidence.  We considered whether to adjourn the case with directions for this to be provided, but decided not to do so, for the following reasons:

(1)          It was unlikely that the parties would agree on a single joint expert.

(2)          The costs of instructing an expert was likely to be significant in the context of the £26,267.21 at stake in this appeal.

(3)          The process of obtaining a final expert report is lengthy: the parties must identify and instruct experts, and usually will need to agree on the questions to be asked.  Having drafted an opinion, the experts then discuss their opinions to try to narrow the issues in dispute; this usually results in further drafting.  In the experience of the Tribunal, this process would be likely to lead to a delay of at least four to six months, and possibly longer.

(4)          Mr Buckingham’s case would need to be relisted, so that the experts could give evidence and be cross-examined.  This would lead to further delays.

(5)          Mr Buckingham is 84 years old, and has already complained to HMRC about the delays in their handling of his case.  A further ten months have elapsed since he notified his appeal to the Tribunal.

(6)          Mr Buckingham’s appeal was not designated as a “lead case” under Rule 18, so it is not binding on other appellants who similarly received a Special Dividend.

(7)          HMRC have not asked that Mr Buckingham’s appeal against Ms Vickerman’s review decision be treated as an informal test case on the tax treatment of the Special Dividend; in fact Mr Butler said in his letter of 8 July 2021 that HMRC had settled another case on the same split income/capital basis used in his discovery assessment, see ¶44." (Buckingham v. HMRC [2023] UKFTT 358 (TC), Judge Redston)

FTT proceeding without expert evidence

English law and Scottish law: UK tribunals have judicial knowledge of all UK law

 

"[27] There is a long-established general principle of Scots law that, in proceedings in Scottish Courts, except for Scots law and other limited exceptions such as EU law and customary international law, all other law is foreign law and is a question of fact. (Walker and Walker Law of Evidence para 15.5.1). A similar rule applies in English law (Dicey and Morris para 3-004). This case raises the question of whether a similar principle applies to a UK tribunal sitting in Scotland.

...

[30] In our opinion, the First-tier Tribunal and Upper Tribunal have judicial knowledge of the law of England and Wales, Scotland and Northern Ireland. That can be seen from the decision of the Inner House in Murray, which was not challenged or criticised on that point in the subsequent appeal to the Supreme Court (2018 SC (UKSC)  15). We consider that we are bound by that Inner House authority, and in any event, even if we are not bound by it, that it is correct in law and should be followed.

[...]

[36] The new Tribunal system under the 2007 Act takes a different approach. There is no initial decision ascribing the case to one of the specific legal jurisdictions of the UK and predetermining the appeal route. Instead the First-tier and Upper Tribunals have a UK wide jurisdiction. The First-tier and Upper Tribunals may decide a case in one of the UK jurisdictions even though the case arises under the law of a jurisdiction other than the one in which the case is decided (sec 26 of the 2007 Act). The appeal route is not predetermined at the outset of the case. It is not determined until the Upper Tribunal is considering whether to grant permission to appeal, at which stage it must specify whether the relevant appeal court for the proposed appeal is to be the Court of Session, the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland (sec 13(11)). The court to be specified is whichever court appears to the Upper Tribunal to be the most appropriate (sec 13(12)). That is a very flexible provision. It allows the Upper Tribunal to direct an issue to the appeal court which is best placed to deal with. If the issue to be appealed is a Scots law issue, it can be directed to the Court of Session. If it is an English law issue, it can be directed to the High Court. That flexibility would be lost if English or Scottish law (as the case may be) was treated as foreign law and therefore a matter of fact in the tribunals. Appeals can only be made on a point of law (sec 13(1)) so if a Scots law issue were to be treated as a matter of fact in the First-tier Tribunal there would be no appeal on that Scots law issue to the Court of Session or indeed any other court. In our opinion, treating English or Scots law (as the case may be) as a matter of fact not law in the First-tier and Upper Tribunals would frustrate the clear intention on the face of the 2007 Act that the Upper Tribunal has discretion to decide which court is the most appropriate to hear the appeal." (Spring Capital Limited v. HMRC [2023] UKUT 91 (TCC), Lord Ericht, Judge Dean)

English law and Scottish law: UK tribunals have judicial knowledge of all UK law

Tribunal requesting Scottish legal advice

 

"[25] (1)          At the request of the Tribunal the parties jointly instructed Mr Denis Edwards to provide Scot’s law advice concerning the transfer of the right to make a legal claim before a claim has been activated. Mr Edwards provided detailed advice which compared the English law concept of a “chose in action” with Scot’s law and concluded that..." (O'Neil v. HMRC [2023] UKFTT 290 (TC), Judge Short)

Tribunal requesting Scottish legal advice
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