PI Brief Update

Appellate Review of Findings of Fact on Foreign Law: Perry v Lopag Trust Reg (No 2) [2023] UKPC 16 - Sebastian Bates, Temple Garden Chambers

27/06/23. As explained at [1] and [3]–[6], the Judicial Committee of the Privy Council has a ‘practice of declining to hear appeals which [are] in substance a challenge to concurrent findings of fact by the courts below, save in exceptional circumstances’. In this case, the judge at first instance had made findings of fact on foreign law (summarised at [26]–[28] and [41]–[43]). These were upheld by the first appellate court: see [29]–[32] and [44]. The question for the Board was whether to apply its practice.

Summary

Drawing on the authorities, the Board took the view (at [15]) that there is a ‘a spectrum of circumstances’ as to appellate review of first-instance findings on foreign law. ‘[T]he principal variable is the degree to which the judge can use his or her skill and experience of domestic law and of the domestic rules of statutory interpretation to ascertain the foreign law and apply it to the case in question.’ Thus, ‘[f]or example where a judge is an English lawyer, at one end of the spectrum there are cases in which the foreign law is a common law system which applies the same or analogous principles and means of legal analysis as English law. In such cases there will be considerable scope for the trial judge to bring to bear his or her legal skills and experience in domestic law in determining and applying the foreign law. The judges of a court hearing the first appeal will also be able to bring to bear their own skill and experience. [. . .] At the other end of the spectrum are cases of disputed foreign law in which the skill and experience of the judge in domestic law has a minimal role to play in the ascertainment and application of foreign law [. . .]. In such cases the court at each level of the hierarchy is dependent on the written and oral evidence of expert witnesses, tested by cross-examination. The trial judge’s findings on the content and application of foreign law have a close kinship to other findings of fact. In that circumstance the first appellate court will be slow to intervene in the judge’s assessment[.]’

Conclusion and Comment

The Board concluded (at [35] and [45]) that ‘this appeal lies at or very close’ to the latter end of that spectrum and was therefore ‘satisfied’ (at [52]) that its practice should apply.

The Board’s account of ‘whether and to what extent appellate judges may use their training and experience in domestic law to analyse and review the findings of fact of a trial judge on foreign law which is based on the evidence of expert witnesses’, as the Board put it at [21], is of wider significance: it is likely as applicable to proceedings in England and Wales as to proceedings in the jurisdictions from which the Board hears appeals.

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