Our first blog about this case (by Alistair Kinley here) considered jurisdiction and the ‘gateway’ in the tort claim, which was agreed to be subject to Egyptian law. This piece now considers the second limb of the appeal in FS Cairo v Lady Brownlie  UKSC 45, namely whether and to what extent the claimant must provide evidence of nature of the applicable foreign law (ie Egyptian) to demonstrate that she has a good arguable case / reasonable prospects of success on the merits under that applicable law.
Presumptions may be employed and evidence may be considered by the court when examining the merits test under the applicable foreign law. It is worth flagging in this introduction that this is quite a technical procedural area.
Competing arguments on merits and proving foreign law
The defendant hotel company argued the claimant had failed to meet the merits / reasonable prospects test because she had not served sufficient evidence of Egyptian law. It contended that because foreign law is treated as a matter of fact by the court, it must be pleaded and proved. The claimant’s failure to do that meant her claim was fatally flawed and there was therefore no ‘serious issue to be tried on the merits’.
The claimant had pleaded Egyptian law but had not served evidence which proved how the content of the law would apply to her case. However, she argued that in the absence of satisfactory evidence of foreign law, the court could look to English law as a result of the ‘presumption of similarity´.
The court unanimously rejected the defendant’s position. In reaching this decision, the Supreme Court distinguished between the ‘presumption of similarity’ and the ‘default rule’.
The default rule
This was summarised by the Supreme Court as meaning that if a party does not plead or seek to rely on a particular rule of (foreign) law, the court will not apply that (foreign) rule of its own motion.
Therefore in a case where a claimant could rely on a foreign law – such as Egyptian law – but chose not to and the defendant raised no objection, the default rule, which has long been established by case law, means the court could apply English law in its place.
However, in Brownlie the claimant had pleaded (and the defendant accepted) that Egyptian law applied, therefore there was no scope for the court to apply English law by default.
The presumption of similarity
The Supreme Court held that the presumption of similarity is subtly different to the default rule. It is a long-applied procedural fiction by which English courts may presume, where the content of the applicable foreign law has not been proved, that it is the same as English law.
The Supreme Court held that the presumption of similarity is fact-specific and is more likely to be appropriate where the foreign law is another common law system rather than a system based for example on Roman law. It is less likely to be appropriate where the relevant domestic law is contained in statute, although this too will be fact-specific.
Where the presumption applies, the Supreme Court held that “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.”
The presumption of similarity was held to apply in the present case as (despite the significant passage of time) the claim was still at an early stage of proceedings and all the claimant needed to show was that her claim had a real prospect of success. [It may not apply so readily were a party to seek to rely on it at trial.]
Looking at the facts of this case, the judgment stated that “In the absence of any evidence of Egyptian law … reliance on the presumption of similarity with English law is sufficient to show that the pleaded claims have a real prospect of success… 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.”
Type of foreign law evidence
The Supreme Court stated that “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.” The court commented on information being readily available on the internet and while on some occasions input from a foreign lawyer is required, but in other cases “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.”
Claimant’s cross appeal on pleading foreign law
The Court of Appeal had previously granted the claimant permission to serve the claim form on the defendant in Egypt but at the same time ordered that she serve revised particulars pleading “the content of Egyptian law, including the relevant principles and sources on which she relies and upon which each of her claims is based”. The claimant applied for permission to cross-appeal this order on the basis that until the defendant served a defence pleading particular rules of Egyptian law, she was entitled to rely on the presumption of similarity and should not be required to plead a substantive case under Egyptian law first.
The Supreme Court refused permission on the cross-appeal. The claimant had amended her pleadings to claim damages under Egyptian law therefore she was obliged to specify the rules or provisions of Egyptian law she intended to rely on so that the defendant knew the case it was being asked to meet. Although a claimant could choose not to plead the provisions of a foreign law she is seeing to rely on and instead rely on the presumption of similarity, in doing so however she would run the risk of needing to persuade the court to grant permission to amend case at a later date, of which there is no guarantee that permission would be granted.
Where does this leave things?
The first point is to recall that the decision on the ‘gateway’ issue (covered in the earlier blog) is likely to mean that residents of England injured abroad can continue bring claims in their home courts against foreign defendants.
The second point is to consider how and when foreign law is to be proved.
· If the claimant does not plead it, defendants will need to consider whether it is more advantageous to stay silent and allow the court to apply the default rule that English law will apply, or whether the foreign law should be pleaded and evidence in support of the same adduced.
· Where a claimant does plead a foreign applicable law, it seems from Brownlie that he or she can rely on the presumption of similarity at an early stage of proceedings, however they will need to plead the content and relevant principles of law in due course so that the defendant knows the claim it is being asked to meet.
The presumption of similarity will always be fact-specific and the judgment in Brownlie should not be misunderstood as meaning that claimants can avoid preparing and serving foreign law evidence.
Parties should also look to the decision and consider carefully whether evidence about a foreign law must always be obtained by instructing an expert foreign lawyer. Although that will be invaluable in very many cases, there are likely to be others in which “it may be sufficient to know what the text says”, ie in which the relevant information could have been provided by producing and translating relevant legislation at a fraction of the cost of obtaining bespoke expert evidence.