PI Focus: Expert Evidence in Cross Border Claims

Articles

10/05/2023

Cases involving a foreign element can be a minefield for practitioners, and with foreign travel back on the agenda after the end of the Covid lockdowns it is important to reacquaint ourselves with the rules around expert evidence in these cases.

The first question to be asked when a claim involving a foreign element lands on your desk is what law will be applicable to the claim. The answer, in tortious claims, is to be found in Regulation (EC) No.864/2007 (known as Rome II – the Rome I regulation governs applicable law in contractual claims).  The general rule is that the law of the country in which the accident took place will be the applicable law, and crucially this includes that country’s law on limitation. Some popular tourist destinations have limitation periods as short as six months for some causes of action, and so the second question, having established the applicable law, is what limitation period applies. The foreign applicable law will govern all questions of liability and quantum, but not the procedure to be followed in bringing and defending the claim or any questions of costs which may arise, which are governed by the rules of the forum in which the claim is brought.

Clearly, then, in order to work out whether there is a cause of action, whether or not limitation has passed, and how much the claim might be worth, it will be necessary to obtain evidence establishing the applicable law. If a claim is brought in the courts of England and Wales and neither party adduces evidence as to the applicable foreign law, the court will assume that it is substantially the same as that of England and Wales, but generally one party or another will recognise that application of foreign law is likely to advantage them. In some jurisdictions, for example, the burden of proof reverses so that it is for the Defendant to disprove negligence; in others there might be a form of strict liability. On the other hand, in some jurisdictions awards for general damages are much lower than in England and Wales and it is extremely difficult to recover the cost of care gratuitously provided; but bereavement damages might be far higher than our statutory regime allows for. In every case governed by foreign law, therefore, it will be necessary to obtain a report from a lawyer qualified in that jurisdiction in order to check the position and make a judgement as to whether it is advantageous to the client to assert the application of foreign law to the claim.

Because matters of procedure are governed by the Civil Procedure Rules, any such report must comply with the provisions of Part 35. The lawyer must state his or her qualifications and experience – and it is surprising how often these bear no resemblance to the case at hand. When seeking a report in a claim arising from a personal injury it is of course always advisable to try and get it from a lawyer practicing in personal injury. As always, there is no substitute for a personal recommendation from someone who has worked with the expert before, and all practitioners who work in this field with any degree of regularity will have views on the best experts to use in respect of the most commonly visited destinations.

A report on foreign law should set out, briefly, the overarching principles of the applicable law. In an English context, for example, the report would state that generally the applicable law is fault based and that it is for the party asserting a proposition to prove it. Thus the Claimant must prove negligence, and it is for the Defendant to prove contributory negligence, both on the balance of probabilities. The English common law is precedent-based and the decisions of some courts are binding on the lower courts. In many European jurisdictions, by contrast, the law is codified and there is no (or only a partial) system of precedent. So the report will make reference to the relevant Articles of the Civil Code and any reference to caselaw will largely be for illustrative purposes only. As regards quantum, the report should state the principle underlying the assessment of damages; in England, for example, the guiding principle is that the Claimant should be placed in precisely the same position (s)he was in prior to the accident, save that general damages awards have been increased by 10% to reflect the incidence of success fees. The report should of course provide a full range of opinion, not merely the author’s own view of the law (s)he is reporting on. Many experts fall into the trap of opining on questions of fact, which are reserved for the judge; it is important to be assiduous to prevent them from doing so. Where, for example, there is a dispute as to how a road traffic accident has occurred, the expert should opine on the application of the foreign law to both sets of circumstances alleged, not just the account given by the instructing party.

Where both Claimant and Defendant are habitually resident in the same country, but the accident giving rise to the claim occurs abroad, the law applicable to the tortious claim will be that of their nation of shared residence. Further, where the claim arises out of a claim to which the Package Travel and Linked Travel Arrangements Regulations 2018 apply ie the Claimant was injured in the course of a package holiday, English law will apply. In these circumstances there will obviously be no need to seek evidence as to foreign law. However, the parties will still need to adduce evidence as to foreign standards. This is because although the claim is subject to the law of England and Wales, the standard by which the supplier of services abroad will be judged is that of the nation in which the services are to be supplied.

Take for example a holidaymaker who books a package holiday in Spain with an English tour operator. (S)he duly embarks on the holiday, but during the course of it falls down the stairs, as a result, (s)he says, of the fact that the stairs are highly polished and slippery, and are not fitted with a handrail. The claim is governed by English law and the Package Travel Regulations apply. The court will therefore be asked to determine whether the Claimant has proven on the balance of probabilities that the Defendant’s accommodation supplier was at fault in the provision of a hotel featuring a highly polished staircase with no handrail.

The court will apply English law to the claim, but will ask itself whether the accommodation complies, not with English but with local foreign, standards. Therefore any English building regulations regarding the provision of handrails will be completely irrelevant – the Claimant must prove that the supplier has breached Spanish regulatory and other standards. This will encompass any relevant building regulations, any municipal rules, and local custom and practice. If it is local practice not to polish the tiles on staircases, for example, due to the risk of slipping, the Claimant may rely on that practice. Where, conversely, the local building regulations applicable at the time of construction required a handrail to be fitted, the Claimant will be able to prove a breach of local regulations, and (all other things being equal) the claim will succeed.

In order to prove a breach of local standards it will almost always be necessary for the Claimant to adduce expert evidence on the subject. In order to challenge this evidence the Defendant may either raise Part 35 Questions or instruct its own expert in the usual way. Because the expert is opining as to local standards, and not foreign law, the choice of expert is much wider than in foreign law claims. In some cases an engineer will be the appropriate expert; in others an architect or lawyer might be able to shed some light on the relevant standards. In the example given, an architect might well be able to opine as to relevant building regulations, but would not have the requisite expertise to provide a view on local cleaning custom and practice; a health and safety expert or lawyer might therefore be the better choice of expert to give an opinion on all aspects of the case. In all cases the choice of discipline should be tailored to the precise factual nexus alleged, insofar as this is possible.

As with experts as to foreign law, experts as to foreign standards should be astute to opine only as to the standards applicable at the relevant time; it is no part of their remit to comment on questions of fact or to attempt to adjudicate between conflicting accounts. Their role is solely to assist the court with the standard by which the foreign supplier should be judged. The court can then use this yardstick to consider whether on the facts the supplier has fallen short of the required norm.

The distinction between expert evidence as to foreign applicable law and local standards is an important one, and practitioners should be careful to bear it in mind in instructing experts in cases involving a foreign element. Although reports on foreign law may properly include reference to local standards, reports on local standards will only rarely need to make reference to foreign law, and any allusion to matters such as reversal of the burden of proof or strict liability is simply misplaced and should be removed prior to finalisation of the report. Practitioners are reminded that where an expert has been instructed to opine as to irrelevant matters, costs consequences may well flow, even in the event that the relevant parts of the report are found to have been helpful to the court.

This article was first published in PI Focus, March 2023

Featured Counsel

Sarah Prager KC

Call 1997 | Silk 2023

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