Foreign Law As An Issue Of Fact: Perry v Lopag Trust And Another (No.2) (Cayman Islands) [2023] UKPC 16

• Law Firm: Deka Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure
• Author: Ms Sarah Prager
• Published date: 30 July 2023

A recent judgment of the Privy Council explores the interplay between two principles on appeal.

First, findings of fact are notoriously difficult to appeal, the appellate courts taking the understandable view that the judge at first instance was in a better position than they to determine them, having heard the evidence develop.

Secondly, foreign law, as we all know, is a question of fact and, as such, must be proven on the balance of probabilities in any particular case. It is not permissible, for example, for a claimant in a claim governed by Spanish law to rely on the slew of recent authorities on the recoverability of Spanish penalty interest to inform the court as to the provisions of Spanish law relating to that issue; these are questions of fact which must be proven by reference to expert evidence in each case.

But foreign law does not feel like a question of fact in the same way that other factual issues do. If the interpretation of a provision of the law of England and Wales is a question of law (as it clearly is), why should the interpretation of an equivalent provision of a foreign Code be a question of fact? For historical reasons many other jurisdictions feature laws which are modelled on the law of England and Wales, and some continue to utilise English caselaw as being persuasive. It is a peculiar feature of the Foreign Law Is Fact rule that courts whose decisions are regarded as being persuasive outside the jurisdiction find themselves approaching domestic foreign caselaw as they would any other factual dispute, although no less an authority than Lord Neuberger, in Actavis UK Limited v Eli Lilly [2017] UKSC 48, observed that the notion that findings of foreign law are findings of fact is 'somewhat artificial'.

In Perry v Lopag Trust (No.2) [2023] UKPC 16 the Privy Council grappled with the approach to be taken by the appellate courts to disputes of foreign law. The members of the Board, Lords Hodge, Lloyd-Jones, Briggs, Kitchin, Sales, Stephens and Richards, determined that the Appellant, in asking them to reconsider matters of foreign law, was asking them to reopen findings of fact; a course they declined to follow, and the appeal was therefore dismissed. However, they considered the approach to be taken to findings of fact on appeal, and concluded that 'findings of fact in relation to foreign law are findings of fact but they are in a special category'.

The Board noted (at 11) that:

"The starting point is that findings in relation to...