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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Joint Stock Company "Aeroflot -Russian Airlines" v Leeds & Ors  EWHC 150 (Ch) (02 February 2017)
Cite as:  WLR(D) 93,  WLR 4537,  EWHC 150 (Ch),  1 WLR 4537
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7 Rolls Building,
London, EC4A 1NL
B e f o r e :
| JOINT STOCK COMPANY "AEROFLOT – RUSSIAN AIRLINES"
|- and -
|MICHAEL THOMAS LEEDS NICHOLAS STEWART WOOD AND KEVIN JOHN HELLARD (as Trustees of the insolvent estate of Platon Elenin (also known as Boris Abramovich Berezovsky))
NIKOLAY ALEXEEVITSCH GLUSHKOV
FORUS HOLDING SA
FORUS LEASING SA
FORUS FINANCE LIMITED
Mr Francis Tregear QC, Mr Alexander Pelling and Mr Owen Curry (instructed by Streathers Solicitors LLP) for the Third and Fifth Defendants
Hearing dates: 25 and 26th January 2017
Crown Copyright ©
Mr Justice Warren :
i) Following various extensions of time, witness statements of fact were due to be exchanged on 23 September 2016. Experts' reports were due to be exchanged on 14 October 2016.
ii) In the event, the third and fifth defendants did not produce an expert's report on issues of Russian law.
iii) Instead, on 14 October 2016, Streathers, the solicitors acting for the third and fifth Defendants, wrote to Pinsent Masons, solicitors acting for the Claimant, referring to section 4(2) Civil Evidence Act 1972 ("CEA"), requesting them to treat the letter as notice under CPR 33.7 of the intention to put in evidence "findings of the High Court on questions of foreign law". The letter refers to the Judgment of Andrew Smith J in Privalov, setting out 22 findings (as they described them) made by him in paragraphs 78 to 139 of his judgment.
i) It was out of time since CPR 33.7(3) required notices to be given not later than the last date for serving witness statements.
ii) Section 4(2) CEA applies only to decision and findings which have been given on questions of foreign law. The relevant passages of the judgment in Privalov are obiter and do not fall within section 4(2).
iii) The third and fifth defendants had not pleaded an appropriate case of Russian law to enable them to adduce the relevant findings in evidence or such as to enable them to advance a positive case in those respects.
Section 4 CEA ("Section 4")
"(2) Where any question as to the law of any country…. outside the United Kingdom…with respect to any matter has been determined….. in any such proceedings as are mentioned in sub-section (4) below [Privalov falls within that sub-section], then in any civil proceedings……
(a) any finding made or decision given on that question in the first-mentioned proceedings shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country with respect to that matter; and
(b) if that finding or decision, as so reported or recorded, is adduced for that purpose, the law in that country …. with respect of that matter shall be taken to be in accordance with that finding unless the contrary is proved….
(5) For the purposes of this section a finding or decision on any such questions as is mentioned in subsection (2) above shall be taken to be reported or recorded in citable form if, but only if, it is reported or recorded in writing in a report, transcript or other document which, if that question had been a question as to the law of England and Wales, could be cited as an authority in legal proceedings in England and Wales."
i) The first is that what I have said in paragraphs 17 to 19 above is not a complete analysis; rather, a complete analysis would lead to the conclusion that any document in appropriate form (eg an official Law Report) can be "cited as an authority". In other words, section 4(5) is concerned solely with the form of a report or record and not with what the report or record is authority for.
ii) The second is that an obiter decision on a question of foreign law (treating it, for the purposes of section 4(5), as a question of the law of England and Wales) is an "authority" within the meaning of section 4(5).