Foreign law disputes—non-compliance with CMC order risked loss of foreign law defence (Direct Investments Ltd (a company in receivership incorporated in the British Virgin Islands) v Mittal-Goenka)
Dispute Resolution analysis: The court held that the defendants, having pleaded Swiss and UAE law, were required to particularise the specific foreign law principles relied upon before any expert evidence would be permitted. They had failed to comply with an earlier case management order requiring such particularisation and had not appealed or sought to vary it. The court rejected the argument that the claimant should instead plead foreign law first, holding that sequencing is a matter of case management and that the burden lies on the party seeking to displace the presumption of similarity. The Supreme Court’s decision in FS Cairo (Nile Plaza) LLC v Brownlie did not constrain that discretion. Although the court could have excluded reliance on Swiss and UAE law altogether, it granted the defendants a short, final opportunity to particularise, failing which the foreign law issues would fall away.