Granville Technology Group Limited (in liquidation) & Ors v LG Display Co Ltd & Anor

An evidential presumption that foreign law is materially similar to English law is distinct from the default rule permitting the court to apply English law where no party relies on foreign law. A party can displace the default rule by pleading that foreign law applies. Once that occurs, the party bearing the burden of proving its case under foreign law may rely on the presumption only where similarity is a fair and reasonable assumption on the facts. A party disputing the presumption’s application need not always plead that contention. The court must not apply the presumption where there is good reason to think that the foreign law materially differs from English law. Case-management considerations remain relevant, but the issue ordinarily should be determined by the trial judge if its significance depends on the evidence and the trial’s outcome.

The claimants sought follow-on damages arising from a European Commission finding of a cartel in LCD panels. The defendants pleaded that parts of the claim were governed by the law of the country where the relevant product first entered the market, including the laws of South Korea, China, Taiwan and Japan. They also put the claimants to proof that the alleged breaches were actionable and not time-barred under the applicable foreign law.

The defendants initially sought permission to adduce expert evidence on foreign limitation law but later abandoned that application. They nevertheless indicated that they would argue at trial that the presumption of similarity between foreign and English law should not apply. The claimants sought to exclude that argument because it had not been pleaded and had emerged late in the proceedings.

1. The application was dismissed. The defendants were not precluded on pleading or case-management grounds from arguing at trial that the presumption of similarity did not apply.
2. The court distinguished the two principles identified in Brownlie v FS Cairo (Nile Plaza) LLC [2022] AC 995. The default rule permits English law to be applied where neither party contends that another legal system governs. The presumption of similarity is instead an evidential rule which may, in suitable circumstances, assist a party to prove the content of applicable foreign law.
3. The default rule had been displaced because the defendants had clearly pleaded that foreign law governed parts of the claim. The claimants therefore bore the burden of establishing their claim under that law, but could seek to do so by relying on the presumption or by adducing direct evidence.
4. A party disputing the application of an evidential presumption need not always plead that contention. The presumption applies only where it is fair and reasonable to infer that the foreign law is materially similar to English law. It would be surprising and legally unsound to require the judge to draw that inference merely because the opposing party had not pleaded that the inference would be unreasonable.
5. The reasoning in Iranian Offshore v Dean [2019] 1 WLR 82, which treated a challenge to the presumption as requiring a reasoned pleading, did not reflect the distinction subsequently drawn in Brownlie. CPR 16.5(2) did not alter the conclusion because pleadings generally state facts, not the evidence or means by which those facts will be proved.
6. The trial judge was left to determine the merits of the presumption issue and any consequential question about bifurcation or foreign-law evidence. Any application for permission to appeal was adjourned until after trial, with time extended accordingly.