Strickland v Kier Ltd & Ors

Where a claimant pleads a contractual claim on the basis that the applicable foreign law produces the same result as the law of England and Wales, a respondent alleging a different result must identify, plead and prove the relevant foreign-law position. The claimant need not initially establish foreign law merely because it is the proper law of the contract.

An Employment Tribunal therefore erred by requiring the claimant to bear half the cost of jointly obtained foreign-law evidence before the respondent had identified and established the contrary position on which it relied.

The claimant appealed a case-management order of the Huntingdon Employment Tribunal concerning surviving contractual claims for wrongful dismissal, holiday pay, flights and relocation costs. The Tribunal had previously held that Dubai law governed those claims.

The respondents sought to contend that Dubai law did not recognise constructive dismissal and that the claims should fail or be struck out. The Tribunal directed joint instruction of a Dubai law firm and required the parties to share the cost, with an alternative jointly instructed firm selected by the Tribunal regardless of cost.

The central issue was which party bore the burden of identifying and proving the asserted effect of Dubai law.

1. Appeal allowed. The claimant was entitled to advance his contractual claims on the basis that, in the relevant respects, Dubai law had the same effect as the law of England and Wales.
2. Where the respondents asserted that the applicable Dubai law produced a different result, including for a proposed strike-out application, they had first to identify the relevant system and provisions of Dubai law and the result for which they contended in respect of each claim.
3. The claimant must then state whether, and in what respects, that position was disputed. If a dispute remained about the effect of the applicable Dubai law, the respondents bore the burden of adducing evidence to establish their position. This did not prevent the claimant from calling his own evidence if he wished.
4. The Tribunal consequently erred in directing the claimant to provide evidence at that stage or to pay half the cost of advice from Herbert Smith Freehills, or an alternative firm selected by the Tribunal. The matter was remitted to the same Tribunal for directions consistent with this judgment.

• Employment Appeal Tribunal: allowed the claimant’s appeal from the Huntingdon Employment Tribunal’s case-management order sent on 7 November 2016, and remitted the matter to that Tribunal for further directions.
• Huntingdon Employment Tribunal: had directed joint instruction of Dubai-law advisers and required the parties to share the cost of advice concerning the contractual claims.