High Court gives guidance on foreign law evidence

Principles on foreign law/whether to approve an expert

In Parry, Morrison & Pankovas v Utmost International Isle of Man Ltd & others (ORD 21/0011, ORD 23/0009, ORD 24/0045) (02.10.26), Acting Deemster Malek KC – a specialist in the field of civil evidence, and General Editor of Phipson on Evidence – recently provided a recap on Manx law on adducing foreign evidence.

This was CMC number 6, in respect of 3 financial services actions brought by approximately 1,600 Claimants which are being case managed together: for a brief summary of the issues in the litigation, see Acting Deemster Malek KC’s judgment of 24th March 2026 (CMC 4) (at § 2).

By CMC 6, the parties had proposed to call expert evidence of foreign law on some 14 jurisdictions, requiring the Court to determine who could give evidence and on what.

Prior to the hearing, the Court had asked the parties (see § 8) to confirm, in respect of each proposed expert, that:

“(1) the proposed expert is independent, (2) has no conflict of interest, (3) has not worked in the past for any of the parties in the proceedings, and (4) state whether the expert has worked in the past with any of the lawyers (both in the Isle of Man and UK support teams) and if so to provide brief details”.

At §§ 10-14, Acting Deemster Malek KC set out applicable principles – referring (and why not) to Phipson on Evidence:

“10. The principles to be applied as to foreign law and deciding whether or not to approve an expert are not controversial. As to foreign law generally:

(1) Foreign law is a question of fact, to be proved by a duly qualified expert in the law of the foreign country.

(2) The function of such an expert extends to both the interpretation and to a certain extent the application of the foreign law.

(3) The burden of proof rests on the party seeking to establish the proposition of foreign law in question.

Phipson on Evidence (21st ed., 2026), para.33-93.

11. Expert evidence is admissible as to the content and general application of the foreign law, but it is not the function of such evidence to opine on the application of such law to the specific facts of the case as that would intrude into the judicial function as to the ultimate issue; see Phipson at para.33-94. … [I]nadmissible expert evidence is liable to be struck out.

12. Pursuant to [s] 4(1) of the Evidence Act 1983, in civil proceedings, a person who is suitably qualified to do so on account of his knowledge or experience is competent to give evidence as to the law of a country or territory outside the Isle of Man.

13. I need to be satisfied that each expert witness has a sufficient familiarity with the relevant foreign law in question to render his or her opinion potentially of relevance to resolving the issues of foreign law in question. If it appears at this stage that the proposed expert is not competent or has conflicts of interest or is not sufficiently independent, it is open to me to refuse to permit expert evidence from that person. Any decision I make at this stage is not binding on the question of whether I should accept each expert’s evidence at trial. I will assess the expert evidence and any competing views between the experts in the normal way.

14. As to the procedural rules:

(1) Pursuant to Rule 8.51 of the [RHCJ], expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

(2) Pursuant to Rule 8.54 of the [RHCJ], no party may call an expert or put in evidence an expert’s report without the Court’s permission (Rule 8.54(1)) and when a party applies for permission he must identify the field in which he wishes to rely upon expert evidence (Rule 8.54(3)) and the Court may limit the amount of the expert’s fees and expenses that party who wishes to rely on the expert may recover from any other party (Rule 8.54(5)).”

The Court went on to consider whether the various proposed experts met the criteria identified above.

Previous Manx courts have also given guidance on Rule 8.51, including, for example:

• Bitel LLC v Kyrgyz Mobil et al (2DS 2012/14) (13.12.12) (Judge of Appeal Tattersall & Deemster Corlett at § 28) (“… the principal relevant factors to be taken into account in the exercise of such discretion are: firstly, how cogent the proposed evidence will be; secondly, how helpful it will be in resolving any of the issues in the case; and thirdly how much will it cost and the relationship of that cost to the sums at stake: see Hale LJ in Mann v Chetty & Patel [2000] EWCA Civ 26“); and

• Madden v Westland Group Ltd & others (ORD 25/0037) (17.09.26) (Deemster Corlett at §§ 11-22) (see Coren Law, High Court prefers Single Joint Expert evidence (… again) (27.09.26)).

Pleading foreign law

Meanwhile, back in CMC 4 (on 24th March 2026), Acting Deemster Malek KC had also provided guidance on pleading foreign law (at §§ 30-32):

“30. The parties do not agree as to what is the correct approach as to pleading foreign law and whether or not the Claimants can in the claims simply rely on Isle of Man law without dealing with any alternative laws raised by the Defendants once they have made it clear that they do not accept that the Court should apply Isle of Man law as the lex fori by default.

31. There are two principles potentially in play here. First, whether the Court should apply Isle of Man law by default as the lex fori. A Court will in general apply the lex fori in the absence of any party raising another foreign law as the applicable law. Secondly, whether or not there is a presumption that foreign law is presumed to be the same as Isle of Man law as the lex fori in the absence of evidence to the contrary. Both of these principles were authoritatively dealt with by the Supreme Court in Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45, [2022] AC 995 at [116] and [163]:

“116 The rationale for applying English law by default, however, depends upon neither party choosing to advance a case that foreign law is applicable. If either party pleads that under the relevant rules of English private international law foreign law is applicable to an obligation, and that case is well founded, it is the duty of the court to apply foreign law. To apply English domestic law in that situation would ex hypothesi be unlawful. In accordance with general principle, the burden is on the party who is making or defending a claim, as the case may be, to prove that it has a legally valid claim or defence. Where the law applicable to the claim or defence is a foreign system of law, this will require the party to show that it has a good claim or defence under that law.”

“163 This argument misunderstands the nature of the presumption, which again needs to be distinguished from the default rule. If it is realistic to suppose that the defendant might be content for the court to apply English law by default and the claimant would prefer this, a claimant may choose when commencing proceedings not to assert that the claim is governed by foreign law, even if under the relevant rules of private international law that would be the case, and simply to plead a claim based on English law. If the defendant does not respond by pleading that foreign law is applicable, the D defendant may find that the time comes when it is too late to raise such a case—as happened, for example, in Balmoral Group Ltd v Borealis (UK) Ltd [2006] 2 Lloyd’s Rep 629, para 433, and Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA [2O19] 1 WLR 82. If, however, the defendant pleads (or it is clear at the outset that the defendant intends to plead) that foreign law is applicable, the claimant must decide whether to contend otherwise and whether to advance a claim for relief under foreign law.”

32. The effect of that is that the Claimants have an option they can either not plead the foreign law and take the risk that the Court will not accept that Isle of Man law applies and that hence they will not be advancing a positive case as regards the alternative, or they can actually plead out the foreign law. In this case the Claimants have opted to take the second course, which is clearly the prudent and the safest course in all the circumstances. The Court appreciates that the addition of foreign law into these proceedings has led to an inevitable increase in the costs and complexity of the proceedings. The proceedings will take longer to resolve as a result.”

Note for practitioners: Parry sets out relevant principles for the application of foreign law and adducing foreign law expert evidence in the Isle of Man.

Disclaimer: professional advice should be sought before applying any information in a given case.

For advice on Isle of Man civil procedure, contact Coren Law.

See other Coren Law Legal Updates on civil procedure.

See also Coren Law’s Isle of Man civil procedure portal: Click On | Coren Law.

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