Expert Evidence part 2
Not all evidence can be the subject of expert evidence. Although expert evidence can range over a whole variety of topics, one thing the court has to consider in addition to whether expert evidence is necessary is whether the type of evidence which is being put forward is appropriate expert evidence.
Ordinarily questions of law are not the subject of evidence. Each side's advocate will argue what he says the law is or how it should be applied. That will be done by reference to authorities in the form of decided cases, statutes and extracts from textbooks as appropriate. The judge will consider these and what they mean and decide upon the law (subject to any appeal). That will be after having given both sides advocates an opportunity to argue their opposing versions of the law or how it should be applied. Therefore the law is decided by authority and argument.
Whilst that might seem obvious, sometimes questions of what is law and what is practice may not be so easy to separate. Imagine that a lawyer or an accountant is being sued for professional negligence in connection with taxation advice. The allegation is that they did various things which were wrong. Insofar as questions of law arise then those are still matters for argument and submission. You do not call a tax expert to say what the law was. However matters are rarely as straightforward as this. In particular areas the question may be what was accepted and settled practice at the time. That is not a pure question of law and therefore can be the subject of expert evidence. It can obviously be difficult to know where to draw the line in any particular case.
Having said that questions of law are not the subject of evidence expert or otherwise, that is English law. Foreign law is different. You may wonder why foreign law can be relevant in English law but it can arise in a number of contacts. For example an act may have been undertaken in a foreign country and there may be an issue as to whether that act was legal or not. (Sometimes claims can involve questions of breaches of law across more than one jurisdiction). There may be a case about a contract which is governed by a different law to that where the case is being tried. There may be an issue about the operation of the trust and the relevant duties may be those imposed by a foreign legal system. English courts treat what the law of a foreign country is as a question of fact to be proved by suitable expert evidence. Nor are English courts alone in this. Certain US jurisdictions do the same: I know one barrister who went to a Texan court to give evidence about English contract law which was relevant to the dispute there.
The alternative would be for the court itself to embark upon attempting to look at statutes or cases and work out foreign law in that way. As soon as you consider that you will see why it is inappropriate. Although having witnesses give evidence about the law may not be a perfect way of proceeding, it is rather better than a court in a country which knows nothing of that law trying to work it out itself.