Proving Foreign Law in Financial Remedy Proceedings

Published: 01/07/2024 07:00

Foreign law often rears its head in financial remedy proceedings with an international element. Issues of foreign law need not cause panic or confusion provided they are identified and appropriately case managed early in the proceedings. The trouble is, often they are not.

Many practitioners will have experienced being sent a ‘legal opinion’ or other purportedly learned composition written by the other side’s foreign lawyer with pages of obscure foreign legislation and a dubious online translation the day before a hearing. Inevitably, much of the time of said hearing is spent debating the admissibility and probative value of such documents. Typically, no Part 25 application will have been made. No one at the hearing, save for the incandescent spouses, speak the language of the pseudo expert, and each conveys conflicting interpretations to their respective legal representatives.

This article provides an aide mémoire of the legal principles governing proof of foreign law and suggests practical solutions for dealing with such issues quickly and cost-effectively in financial remedy proceedings.

Foreign law must be pleaded and proved as a fact

The central principle is that foreign law must be pleaded and proved as a fact.1 In the context of financial remedy proceedings (whether under the Matrimonial Causes Act 1973, Sch 1 Children Act 1989 or Part III Matrimonial and Family Proceedings Act 1984) where formal pleadings are alien, the correct practice is for the party wishing to rely on foreign law to seek appropriate directions at the First Appointment. It is at that stage that the court must give directions, where appropriate, about obtaining expert evidence, if required, and the evidence to be adduced by each party generally (FPR 9.15(3)(b)–(c)).

English courts cannot take judicial notice of foreign law.2 Consequently, it must be proved. As with any other issue of fact the burden of proving foreign law lies on the party who bases its claim or defence on it.3 This means that if it is for the party seeking to rely on foreign law to state: (1) what proposition of foreign law they assert; and (2) what evidence they seek to adduce in support of it. If that party fails to adduce evidence of foreign law or if the evidence provided is insufficient to prove the content of foreign law asserted, the evidential burden is not discharged and the asserted proposition of foreign law cannot form part of the factual matrix underlying the court’s decision.

In other contexts, where it is asserted that foreign law is applicable as a matter of international private law but there is no evidence or insufficient evidence of the content of the foreign law, a ‘presumption of similarity’ arises such that the foreign law will in general be presumed to be the same as English law (FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45). This presumption has no applicability in financial remedy proceedings for the simple reason that English law always applies to such proceedings. The case of Brownlie is however of some assistance when deciding whether expert evidence should be obtained to prove foreign law or whether other evidence may be sufficient (as to which see below).

Foreign law need not be proved if it is admitted.4 Where both parties agree the content of foreign law on a particular point (e.g. as to whether a foreign court will recognise and enforce an English pension sharing order) the court can accept this agreement as an agreed fact upon which its decision can be based, without the need for any further evidence.

Modes of proof

The orthodoxy is that foreign law should be proved by expert evidence and not by the production of the books or other material in which it is contained.5 This rule dates back to the 19th century.6 It is, with respect, outdated. Its rigid application often leads to disproportionate costs, particularly in financial remedy proceedings where an issue of foreign law is important, but peripheral.

Two recent authorities of the Court of Appeal and of the Supreme Court have challenged the orthodoxy. In R (KV) v Secretary of State for the Home Department [2018] EWCA Civ 2483, Leggatt LJ (as he then was) stated that two main reasons generally given for the rule that foreign law should be proved by expert evidence were that:

(1) the court is not competent to interpret such materials; and

(2) without expert evidence the court cannot be satisfied that the most relevant and up to date foreign law materials have been identified.

As to (1), he remarked that this is not always true. For instance, an English judge does not generally need expert assistance in order to understand and interpret an enactment or decision of a court of another English-speaking country whose law forms part of the common law. As to (2), he commented as follows:

‘34. No doubt this may sometimes be a wise approach to adopt. But in law as in so many other areas of life, technological advance and the expansion of the internet have in recent years revolutionised the ability to gain access to information. No longer is it generally necessary to consult books in a library in order to conduct legal research. A vast amount of legislation and case law in many jurisdictions is readily available online. Where, for example, the answer to a question of foreign law is to be found in a provision of an enactment which is published in its current version in English on an official government website, I can see no reason why a court should not look at the provision without the aid of an expert witness. In such a situation there is no material risk that the provision has been abrogated by subsequent legislation.

35. In making these observations, I am not encouraging the use of sources such as Wikipedia (which was relied on by the appellant’s lawyers in the FTT in this case) as evidence of foreign law. But it should, in my view, be a matter for the judgment of the court or tribunal to decide what material to accept in any particular case as evidence of foreign law. In deciding whether expert evidence is needed, it is relevant to consider not only the nature of the question of foreign law raised, the nature of the foreign legal system and the nature of the materials relied on, but also the importance of dealing with cases at proportionate cost. With this as with other matters of evidence, a more informal approach may be justified in tribunal proceedings than in court proceedings.’

Lord Leggatt made similar comments, obiter, in Brownlie:

‘148. […] 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.’7

Those remarks are particularly apposite in financial remedy cases. To be clear, much will depend on the facts – and the dynamics – of each case. For instance, a single joint expert report will be preferable to a battle of partisan legal opinions from the parties’ respective foreign lawyers. But even in cases where such battles arise, it will be worth investigating whether the foreign lawyers in fact do agree on what foreign law says, but simply disagree as to how it applies in the instant case. If that is so, there is no evidential dispute as to the content of the foreign law, only as to its application. That is an issue which falls to be determined by the court.

Previous decisions and judicial research

Foreign law cannot be deduced from previous English decisions in which the same rule of foreign law has been before the court (Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 at 297–298) although such decisions may be admissible in evidence for the purpose of proving foreign law (s 4(2) Civil Evidence Act 1972).8 Whether or not one should seek to rely on previous authorities will largely depend on the time which has elapsed since the decision was made, and how pertinent the decision is.

Although the English court will scrutinise the evidence adduced, it will not undertake its own research into questions of law, any more than it will into other evidence.2 The court is limited to the evidence adduced by the parties.

Practical solutions

Evidential issues of foreign law should be identified and case managed at the earliest opportunity.

One way of dealing with such issues swiftly is simply to set out in open correspondence prior to the First Appointment the point(s) of foreign law, which one seeks to rely on, ideally with documentary evidence in support (for instance, copy of the relevant foreign legal provision with a translation), and ask the other side whether the position is agreed. This can be particularly effective when the issue of foreign law has a clear ‘yes’ or ‘no’ answer and is relatively narrow. If the position is agreed, this can be recorded in a schedule appended to the First Appointment order. If it is not agreed, appropriate directions can be sought at the First Appointment.

Other creative solutions include holding a collaborative call with an agreed, suitably qualified, foreign lawyer ahead of the First Appointment to identify the issues of foreign law requiring investigation. In a recent matter in which this author was involved, on the eve of a directions hearing, the judge invited the legal representatives on both sides to hold a remote joint discussion with an IAFL fellow to seek clarity on points of foreign law so that the court could better assess the scope of the necessary expert evidence. A one-hour Teams discussion with a foreign lawyer ensued. An agreed list of questions was put to the foreign lawyer. The answers were recorded in an attendance note sent to the judge prior to the hearing. The issues were significantly narrowed as a result.

Lastly, there will be cases where proof of foreign law – whether expert evidence or not – will be futile. For instance, in cases involving parallel proceedings, there is little use in obtaining expert evidence of foreign law on an issue which is falls to be determined imminently by the foreign court (see Bentinck v Bentinck [2007] EWCA Civ 175 at [44] per Collins LJ and Giusti v Ferragamo [2019] EWCA Civ 691 at [54]–[65] per Moylan LJ).

Ultimately, the significance of the point of foreign law advanced in the litigation will inform the evidential route adopted. Much like a family holiday, the important thing is to know where one is going, how one gets there, and how much it will cost.

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