Lloyd's Maritime and Commercial Law Quarterly
THE USE OF DOMESTIC PRECEDENTS IN PROVING FOREIGN LAW
Lau Kwan Ho*
In the English legal system it is trite that foreign law must generally be proved as a fact, with evidence usually adduced by way of expert testimony. Section 4(2) of the Civil Evidence Act 1972 represents a notable exception to this method of proof. It provides that a prior determination of a senior UK court on a question of foreign law on any matter shall be admissible in evidence in a subsequent case for the purpose of proving the foreign law with respect to that matter. In addition, the point of foreign law in the subsequent proceeding will be taken to be in accordance with that prior determination, unless the contrary is proved. This legislation has not often been commented upon, which is slightly surprising given its game-changing potential in litigation. But a closer look is necessary in view of how it may increasingly be called into action, as explained below.
In 1970 the Law Reform Committee issued its 17th Report,1 which examined the law on opinion and expert evidence. The Committee appears to have been much taken with two considerations:2 that any finding on a point of foreign law, being a finding of fact, had no probative value in a subsequent action, such that the same point would have to be proven afresh in a separate and unrelated case; and that, in default of this fresh proof, a presumption would arise that foreign law was the same as English law. It seems a logical inference that the Committee was (on the first point) concerned to reduce possible wastages of resource and (on the second point) looking to escape the application of a high legal fiction, which the presumption of identity undoubtedly was. The Committee concluded:3
“We consider that a finding by an English court as to what the law of a foreign state is upon a particular matter should be admissible as prima facie evidence of the foreign law in any subsequent action in which the same point is in issue. It should not be conclusive evidence: it is not impossible for there to be conflicting findings of English courts and, in any event, it should be open to any party to the subsequent action to call expert evidence to prove that the previous finding was erroneous; but, in the absence of such proof or of a conflicting finding, the previous finding should be accepted as correct and as rebutting the presumption that the law of the foreign state on that particular matter was the same as English law.”
This recommendation was accepted, with the result that s.4(2) of the Civil Evidence Act 1972 was enacted.
For many years this provision lay in cold storage and was hardly commented upon. What was written was mostly descriptive, with some illuminating exceptions. Peter Murphy ventured to state that s.4(2) was “designed to avoid the embarrassing prospect of different decisions by English courts on identical points of foreign law”.4 Soon after the enactment of the Civil Evidence Act 1972, Lord Stow Hill in debate in the House of Lords thought that inconsistent decisions on foreign law gave rise to “inconvenient consequences”, a situation that s.4(2) was intended to put right.5 Others took the view that
* Advocate & Solicitor, Singapore.
1. Law Reform Committee, 17th Report: Evidence of Opinion and Expert Evidence (Cmnd 4489, 1970).
2. Ibid, [64].
3. Ibid.
4. P Murphy, A Practical Approach to Evidence (Financial Training, London, 1980), 237.
5. (10 August 1972) Hansard: 334 HL Deb 1346.
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