Joint Stock Company "Aeroflot -Russian Airlines" v Leeds & Ors

Under section 4(2) of the Civil Evidence Act 1972, clear and reasoned conclusions about foreign law may be admissible in later civil proceedings even when they were obiter in the earlier case. Section 4(5) is concerned not merely with the formal type of document, but with whether the material could be cited as an authority on the relevant point, assuming it concerned English law. An approved written judgment containing final, reasoned conclusions may therefore constitute persuasive authority. Admissibility remains subject to relevance, and the statutory presumption may be rebutted by contrary evidence. The trial judge should ordinarily determine relevance and evidential weight at trial.

The claimant challenged the admissibility of conclusions on Russian law contained in Fiona Trust Holding Corporation & ors v Privalov & ors [2010] EWHC 3199. The third and fifth defendants had given notice under section 4(2) of the Civil Evidence Act 1972 that they intended to rely on those conclusions instead of adducing their own expert evidence on Russian law.

The claimant argued that the relevant conclusions were obiter and therefore fell outside section 4(2). The central issue was whether clear, final conclusions on foreign law, which were unnecessary to the earlier decision, could nevertheless be findings or decisions reported in citable form and admissible as evidence in the present proceedings.

1. Statutory construction. Section 4(2) of the Civil Evidence Act 1972 permits findings or decisions on foreign law in earlier qualifying proceedings to be admitted as evidence of that law, subject to the statutory conditions and the possibility of proving the contrary. The evidence must still be relevant to an issue requiring determination. [2017] EWHC 150 (Ch) [5]-[10].
2. Section 4(5) must be read with section 4(2). The phrase concerning a document which could be cited as an authority is directed not merely to the document’s form, but also to whether the material would constitute authority for the point in question if it concerned English law. A finding necessary to the earlier decision would ordinarily be binding precedent in that counterfactual analysis. [2017] EWHC 150 (Ch) [14]-[21].
3. That reasoning does not exclude obiter conclusions. An approved written judgment containing clear and final conclusions, supported by detailed reasoning, may be a persuasive authority even though it is not binding. The fact that the conclusions were unnecessary to the earlier decision does not, in principle, make them inadmissible. Their weight depends on the cogency of the reasoning and may be tested by expert evidence. [2017] EWHC 150 (Ch) [22]-[25].
4. The conclusions of Andrew Smith J on Russian law in Fiona Trust Holding Corporation & ors v Privalov & ors were expressly obiter, but were clear, final conclusions reached after detailed consideration of evidence and submissions. They were therefore findings or decisions reported in citable form within section 4(2), and were admissible. The trial judge remained responsible for deciding whether particular conclusions were relevant and what weight they should receive. [2017] EWHC 150 (Ch) [26]-[28].