The Dekagram: 15th December 2025

This year we have an important announcement: the winner of the latest Deka Competition! Scott Rigby has the honour of selecting the Dekiri for next year – a twist on the classic Prohibition cocktail, the Bees Knees, made with gin, lemon and honey. It is (like Deka) strong, refreshing and quite irresistible. Thank you Scott!

And in our last Dekagram of the year, Ben Rodgers considers yet another quite extraordinary case – there seems to have been a lot of them about this year – whilst Bethany Hutchison has a Christmas list, she’s checking it twice, but she’s not concerned with who’s been naughty or nice.

Foreign law experts in cross-border claims

Last Monday, HHJ Pelling KC gave judgment on an issue of foreign law in a long-running cross-border group claim: Viegas v. Cutrale [2025] EWHC 3158.  The 5-day trial, heard in the summer, was concerned exclusively with hearing the evidence of two experts in Brazilian law.

José Luis Cutrale, the Orange King of Brazil, was a billionaire orange juice magnate.  He founded his company in São Paulo in 1967.  He bought oranges in Brazil and sold the juice abroad.  In 2006, the Brazilian antitrust authority conducted a series of dawn raids on the Orange King’s offices, and others.  They called this “Operation Fanta” (yes, they really did).  They suspected that he had, for years, been a member of a flagrant cartel intended to suppress the price paid to orange growers.  Criminal proceedings were instituted.  The affair was notorious in Brazil at the time.  The Orange King left Brazil and moved into a mansion round the corner from Harrods. 

The wheels of Brazilian justice ground along.  Ten years later, in 2016, the Orange King’s company entered into an agreement with the Brazilian antitrust authority.  They agreed to pay the Brazilian government 92m reais (then about £20m) and promised not to do it again.  In return for this, the criminal proceedings were dropped.

In 2019, a group of thousands of Brazilian orange growers served the Orange King here, in England, with English High Court proceedings claiming damages for the losses they had suffered due to the cartel.  The Orange King’s jurisdictional challenge failed: [2021] EWHC 2956 (Comm).

He died in London in 2022.  The claim carried on against his wife and son.

The Orange King’s case on limitation was that time had started running against the Claimants in 2006, when Operation Fanta had revealed everything they needed to know about the cartel.  The Brazilian Superior Court of Justice had so held in eight judgments between 2021 and 2023, arising out of the exact same cartel.

The Claimants’ case on limitation was that time only started running against them in 2016, when the Orange King’s company made the deal with the antitrust authority.  The Brazilian Superior Court of Justice had got the law wrong, in all eight judgments.

HHJ Pelling KC relied upon MCC Proceeds v Bishopsgate Investment (No 4) [1999] CLC 417 (CA), which stated the function of the expert witness on foreign law as follows:

(1) to inform the court of the relevant contents of the foreign law; identifying statutes or other legislation and explaining where necessary the foreign court’s approach to their construction;

(2) to identify judgments or other authorities, explaining what status they have as sources of the foreign law; and

(3) where there is no authority directly in point, to assist the English judge in making a finding as to what the foreign court’s ruling would be if the issue was to arise for decision there.  The expert witness is entitled to give opinion evidence in the absence of direct authority.  See Mustill LJ in G & H Montage GmbH v Irvani [1990] 1 WLR 667 (CA):

‘The fact that the plaintiffs’ expert was not able to do more than assert, in this novel situation, his own view on how the German court would react when faced with a similar problem does not disqualify his evidence from being relied upon. There are many fields of law in which the books provide no direct answer, and where the skill of the lawyer lies precisely in predicting what answer should be given. If the judge concludes that the expert’s prediction is reliable, he is fully entitled to give effect to it.’

But there are limits to function number (3).  The purpose for which foreign law experts give evidence, is to predict the likely decision of a foreign court.  It is not to press upon the English judge the witness’s personal views as to what answer the foreign court should give.

Per HHJ Pelling KC, where the issue of foreign law had been resolved by the highest relevant court in the jurisdiction concerned, that will be followed by an English court unless the party contending otherwise can show that the foreign court concerned has misstated or misapplied its own law and would resolve the issue differently if having to decide the same issue in the future.

HHJ Pelling KC carefully analysed not merely the decisions of the Brazilian Superior Court of Justice in the eight judgments, but also the arguments that had been put to it, the documentation available to it and the findings of the lower courts.  He held that there was no chance that the Brazilian court would change its mind.  In the end, it appears the Claimants’ expert witness was doing what we’ve all seen experts do from time to time: riding a hobby horse.

About the Author

Ben Rodgers was called in 2007 and now specialises in personal injury work with an emphasis on accidents abroad, including maritime accidents (he is himself an excellent sailor). He is listed for personal injury in the Legal 500, where he is said to be ‘go-to counsel for complex liability disputes; calm and composed, but will fight ferociously when required.’

All I want for Christmas is… a procedurally tight pre-action application

Cavanagh J handed down judgment last week in the case of Keyser Khan v Chief Constable of Devon & Cornwall Police [2025] EWHC (KB) 3258. He was clearly in the December spirit of list writing, and his judgment offers helpful reminders for practitioners (and litigants in person) on the limits of pre-action applications and the importance of choosing the correct forum.

The application

The claimant, Mr Khan, ran a business importing and selling swords, knives and other bladed articles. Following seizures from business premises, he was charged with nine counts relating to offensive weapons for sale or hire. The CPS ultimately offered to withdraw the charges if Mr Khan renounced ownership claims over specified items and agreed to indemnify the police in respect of all claims which might be made in respect of them. Mr Khan signed a renunciation declaration in March 2025. Certain items were later destroyed, including some which the defendant accepted should not have been destroyed (said to be by mistake). Mr Khan had County Court claims ongoing concerning those destroyed items.

In August 2025, he issued an application in the High Court under CPR Part 25 seeking pre-action orders including (i) preservation of exhibits, (ii) third-party forensic inspection, (iii) disclosure of access logs and CCTV, and (iv) an injunction preventing certain officers from accessing the exhibits. The application was said by the claimant to relate to the ongoing County Court claims, as well as a proposed (but not outlined in any great detail) claim in the High Court for malicious prosecution and misfeasance in public office.

The application failed. But the lasting value of the decision lies less in the “no” and more in the Court’s explanation of why the application was, in procedural terms, an ambitious request.

Key lessons

Cavanagh J noted the claimant’s excessively long skeleton argument (49 pages, accompanied by exhibits that made further submissions), and suggested the claimant may not have properly understood the remit of the court in a pre-action interim relief hearing. He also noted the “practical problem […] that [he had] not been provided with a draft order. This is more than just a formality, because a draft order would have enabled the court to focus on exactly what it is that the Claimant [was] seeking.”

For the benefit of all, his judgment sets out a read-worthy list of preliminary points about the nature of pre-action hearings, the boundaries of jurisdiction, and the disciplined approach the court takes to interim relief.

1) The hearing is not a mini-trial, and the court will not be deciding who’s naughty or nice.

The Court made clear that it was no part of the function of the hearing to decide “the rights and wrongs” of the underlying dispute.

Even where an applicant believes (strongly) that the defendant has acted unlawfully or improperly, the court’s task at a pre-action interim hearing is narrow: does the strict procedural threshold for the interim order exist? The claimant’s criticisms might be part of the narrative, but they do not convert an interim hearing into a forum for determining liability.

2) County Court proceedings mean County Court remedies.

A central procedural point was jurisdictional: where there are extant County Court proceedings, interim applications relating to those proceedings must be made in the County Court. The High Court has no jurisdiction to order preservation, disclosure, or provision of information for the purposes of claims in the County Court, which has its own procedural rules. Accordingly, this application could be considered only in relation to the proposed High Court claims, and not as a way of circumventing County Court procedure. It’s a reminder that parties cannot use the High Court as a procedural “express lane” to obtain orders they think are unavailable or inconvenient to pursue in the County Court. The forum for interim relief is generally the forum of the substantive proceedings.

3) Crown Court disclosure disputes belong in the Crown Court.

Insofar as the claimant alleged a breach of a Crown Court judge’s disclosure direction, the Court was clear: raise it in the Crown Court. The High Court is not the supervisory arena for managing criminal disclosure compliance in this way.

4) The absence of steps to issue a High Court claim means this the application faced the high bar of being truly “pre-action”.

Perhaps the most important point: there were no extant High Court proceedings to which the application related. Although the claimant contemplated High Court claims (malicious prosecution, misfeasance, and a further claim concerning items destroyed following the renunciation declaration), he had not issued them.

That placed the application into the category of genuinely pre-claim relief, which attracts a high threshold, not least because the civil rules are designed to regulate disclosure and evidence once proceedings are on foot. The judgment makes clear that if proceedings are not yet issued, the court will ask: why not? If you want urgent protection, the court will expect urgency to be reflected in procedural steps, including issuing when you can. Pre-action orders are not ends in themselves: they exist to protect the position pending the commencement of identified proceedings.

5) The High Court does not have a free-standing “interests of justice” roving commission.

A striking feature of the judgment is the rejection of an implicit assumption sometimes encountered in over-enthusiastic applications: that the High Court has a broad, open-ended power to do whatever seems fair, simply because “justice” requires it.

While the High Court does have power to grant interim relief before a claim is issued, such relief is available only where the matter is urgent or it is otherwise desirable in the interests of justice (CPR 25.2(2)), and even then, only in rare and exceptional cases.

6) Pre-action preservation and disclosure are rare and exceptional.

It will be only in rare and exceptional circumstances that the court will grant pre-action applications for the preservation and disclosure of documents. The CPR contains carefully drafted mechanisms for disclosure, preservation and detention of evidence, and responses to requests for information. These procedures apply once proceedings have begun. Nothing like that can be said to usually apply before the case has even been commenced.

7) This is not a forum for cross-examining a witness.

One final procedural lesson was outlined by Cavanagh J: the claimant sought to have a police officer attend for cross-examination to resolve factual contradictions. The Court held that this would be quite inappropriate in a matter of this kind, especially where proceedings had not even been started.

Conclusion

Ultimately, Cavanagh J refused the application, and his succinct judgment is well worth a read. There are lessons for all those who have particular gifts on their wishlists this festive period: being clear about exactly what you’re seeking gives you a better chance of avoiding disappointment on Christmas [read: application hearing] day; being on the procedural nice list is essential; and, a well drafted letter to Father Christmas [read: succinct skeleton argument, and draft order] will help.

Merry pre-action application making, one and all!

About the Author

Bethany Hutchison was called in 2021. Prior to joining chambers she gained a broad range of experience working in the legal advisory teams in the Cabinet Office and the Ministry of Housing, Communities and Local Government, following successful completion of her pupillage with the Government Legal Department, advising on high profile commercial, immigration and contractual matters during that time. She is now developing a busy common law practice across the full range of chambers’ specialisms.