Proof of foreign law: a reduced role for expert evidence?

• Published in: Journal of private international law Vol. 20; no. 1; pp. 95 - 116
• Main Authors: Ward, Tony, Plenderleith Ferguson, Ann
• Format: Journal Article
• Language: English
• Published: United Kingdom Routledge 02.01.2024; Taylor & Francis; Taylor & Francis Ltd
• Subjects: Brownlie; Courts; Crossexamination; Evidence, Expert; expert evidence; Expert witness testimony; foreign law; Judges; Judicial notice; presumption of continuity; presumption of similarity; Presumptions; Presumptions (Law); Truthfulness and falsehood; Witnesses; GREAT BRITAIN
• ISSN: 1744-1048; 1757-8418
• DOI: 10.1080/17441048.2024.2347720

This article considers the position as to proof of foreign law in the English courts in light of the case of FS Nile Plaza v Brownlie [2021] UKSC 45 and the 11th edition of the Commercial Court Guide. We discuss the "old notion" of proof by expert witnesses, the extent to which recent developments displace the traditional role of the expert and enhance that of the advocate, and the dicta in Brownlie concerning the presumptions of similarity and continuity and judicial notice. While welcoming the greater flexibility in the way foreign law can be put before the English court, we argue that the use of oral expert evidence and cross-examination will remain important in at least two types of case: those where the issue of foreign law is complex or novel, and those where the English court does not just need to ascertain the "correct" interpretation of foreign law, but rather predict whether a foreign court would in reality provide appropriate relief in relation to the matter before the court.