English law holds that foreign law must be pleaded and proved as a question of fact by way of expert evidence; the claimant did not make an application to adduce expert evidence. The claimant argued that the trial was to decide if the sums were recoverable in principle and for Italian law matters to be pleaded subsequently. The defendant argued, and the Judge agreed, that the Master’s intention was for the issue of the recoverability of the subrogated claims to be decided at the trial.
The documents on Italian law which the claimant had placed in the trial bundle were not admissible evidence of the foreign law as documents can usually only be introduced to support expert evidence of the same. The Judge held that the subrogated claims, as pleaded, could not proceed. Further the Judge held that, had the claimant pleaded and proved the facts that she sought to rely on, the claims would have failed in any event as the subrogated claims in this matter fell outside of the definition of 'subrogation' in the foreign law on which the claimant sought to rely.
This is a reminder to litigators to ensure that they have the necessary experts for all aspects of their case.
Adam Dyl & Jodee Mayer, Anthony Gold