Finance litigation update - July 2022

FINANCE LITIGATION UPDATE – JULY 2022 16 French case law in evidence and it had been appropriate to evaluate it. To what extent can questions of foreign law be reviewed on appeal? In Cassini v Emerald, both parties apparently accepted that although foreign law findings are treated as findings of fact, they are 'not subject to the same restrictions on scrutiny by an appellate court'. While the Court of Appeal did not disagree with the first instance judge, it held it was entitled to 'consider the expert evidence afresh and form its own view of the cogency of the rival contentions in determining whether the trial judge came to the correct conclusion.' By contrast, in Byers v SNB, the Court of Appeal found that the circumstances in which it could interfere with a finding on foreign law from a lower court were effectively confined to the type of foreign law question where the legal concepts are so similar that the judge provides their own legal input. The Court of Appeal in Byers v SNB held: 'this Court should be slow to interfere with the Judge's findings of fact on Saudi Arabian law and should only do so in accordance with the principles applicable generally to findings of fact made by a trial judge who has based his findings on evidence from witnesses.' Further, that '[a]ppellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so.' There is no reference in the later (by a few weeks) Cassini judgment to the decision in Byers. It therefore remains to be seen which interpretation of an appellate court's ability to review findings of foreign law is to be preferred. Practical points These cases highlight the importance of selecting the right expert on foreign law. Even if an expert's credentials and reputation are impressive, it is the evidence they give and the way they present it which is likely to be determinative. This is likely to be even more important where the system of law concerned is "far removed" from English law, because the courts will be less likely to interpret the relevant provisions themselves, and so will rely more heavily on the expert evidence. While the extent to which an appellate court can review findings on foreign law remains to be seen, the role of the trial judge in evaluating the expert evidence is plainly key. Edward Davis and Harriet Campbell