Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors

Under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, the law governing a tort is generally the law of the country where the events constituting it occurred, subject to displacement only where another law is substantially more appropriate after comparing the relevant connecting factors. Later financial consequences in another country will not ordinarily displace the law applicable when the tort was committed. In deciding whether privileged documents disclosed by mistake may be used, the court applies an equitable, fact-sensitive jurisdiction. There are no rigid rules, and permission may be refused where the mistake was obvious to a reasonable solicitor or where justice otherwise requires.

The claimants alleged that the defendants committed torts including misrepresentation, negligent misstatement and breach of duty of care in inducing property purchases in Cyprus. The court determined, at an interim stage agreed by the parties, the proper law of those torts. The defendants also sought permission under CPR 31.20 to use four witness statements disclosed by the claimants’ solicitors, which the claimants said had been disclosed inadvertently. The central issues were whether the disclosure resulted from an obvious mistake and, if so, whether justice or equity nevertheless required permission to be refused; and whether English or Cypriot law governed the alleged torts.

1. The defendants were permitted to use the four witness statements under CPR 31.20. Applying the principles stated by the Court of Appeal in Mohammed Al Fayed and Others v The Commissioner of Police of the Metropolis [2002) EWCA Civ 780, the court exercises an equitable jurisdiction without rigid rules. The disclosure was sufficiently deliberate and clearly presented that a reasonable solicitor was entitled to assume that the statements had intentionally been disclosed. The pagination irregularities did not make the mistake obvious. There were also no other circumstances making permission unjust or inequitable.
2. The proper law of the alleged torts was determined under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The general rule directs attention to the country in which the events constituting the tort occurred, with section 11(2)(c) focusing on the most significant element or elements where events occurred in different countries.
3. Section 12 requires a high threshold. The general rule is displaced only if, having regard to all the circumstances and the significance of the connecting factors, it is substantially more appropriate for the issues to be determined by the law of another country. The court treated the inquiry as a weighing exercise, including factors relating to the parties, events, circumstances and consequences.
4. The material representations were made and communicated principally in the United Kingdom by UK-based salesmen and agents. The claimants entered into the relevant transactions and suffered their initial financial loss there. The Cypriot location of the properties, the Cyprus-law contracts and mortgages, subsequent non-performance and later settlement losses did not establish the substantial appropriateness required to displace the general rule. English law therefore applied, or Scottish law for two claimants where appropriate.