Foreign Law as Fact & the Unitary-Trial Default:
A Comprehensive Commentary on
Vico Properties Ltd v Bank of Scotland PLC & Anor ([2025] IEHC 401)

1. Introduction

The High Court’s decision in Vico Properties Ltd v Bank of Scotland PLC clarifies when Irish courts should refuse to sever issues for preliminary determination, particularly where (a) the proposed issues are intertwined with disputed facts, and
(b) the “facts” relied upon consist of foreign law which, under Irish procedure, must itself be proved by evidence.

The case arose from alleged mis-selling of an interest-rate derivative product (IRDP) by the Bank of Scotland group to Vico Properties Ltd (“Vico”), an Irish property company. The defendants sought to carve out two issues for early resolution:

1. Whether Vico’s claim was statute-barred (under Irish or English limitation law).
2. Whether, even if English regulation applied, Vico would have been excluded from the UK Financial Services Authority (FSA) redress scheme by virtue of the “Sophisticated Customer Criteria”.

Ms Justice Marguerite Bolger refused the application, insisting that the default position of a single, unitary trial must prevail.

2. Summary of the Judgment

• The Court reaffirmed that an order for preliminary issues is exceptional and only appropriate where a discrete question of pure law can be decided on agreed or assumed facts.
• Because both proposed issues depended on the content of English law, and foreign law is treated as fact in Irish courts, the necessary facts were not agreed.
• The plaintiff intended to plead fraudulent concealment under s. 71 Statute of Limitations 1957, adding further disputed fact questions.
• Determining the proposed issues would not dispose of the entire action; important misrepresentation claims would remain.
• Accordingly, the Court exercised its discretion to refuse a split trial and directed that all matters proceed to a full hearing.
• Indicative costs: defendants to pay the plaintiff’s costs of the failed application.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

(a) Core Irish Authorities on Preliminary Issues

• Campion v South Tipperary Co Co [2015] 1 IR 716 – McKechnie J described a unitary trial as “the starting point” and laid down the twin requirements for a preliminary issue (no factual dispute; discrete question of law). Justice Bolger treats this as the lodestar.
• Tara Exploration v Minister for Industry & Commerce [1975] IR 242 – O’Higgins CJ emphasised that preliminary issues must involve “pure law where no evidence is needed”.
• Kilty v Hayden [1969] IR 261 – Ó Dálaigh CJ confirmed O. 25 was intended for stand-alone points of law “dissociated from issues of fact”.
• Dempsey v Minister for Education [2006] IEHC 183 – Laffoy J refused to split where the issue involved mixed fact and law.

(b) Statute-of-Limitations Precedent

• Elliott v ACC Bank [2020] IECA 278 (Faherty J) & Smith v Cunningham [2021] IECA 268 (Collins J) – identify limitation defences as oft-suitable for preliminary determination only when they rest on undisputed facts. Justice Bolger distinguishes these because fraudulent concealment and foreign-law proof introduce factual disputes.
• Buttimer v Bank of Scotland [2020] IEHC 439 – limitation defence unsuitable where fraudulent concealment alleged; cited in support.

(c) Foreign Law as Fact

• Walsh v National Irish Bank [2013] IESC 2 – Clarke CJ held foreign law must be proved by sworn expert evidence; if disputed, cross-examination may be necessary. Justice Bolger relies on this to treat English-law contentions as factual.

3.2 Legal Reasoning of the Court

1. Requirement of Agreed Facts. Because English law on limitation and the FSA scheme was not common case—and would require duelling experts—the fundamental pre-condition for a preliminary issue (no factual dispute) collapsed.
2. Nature of Foreign Law. Irish private international law treats foreign law as a fact (Walsh). Expert controversy turns the proposed issues into mixed law-and-fact disputes.
3. Potential Plea of Fraudulent Concealment. Section 71 Statute of Limitations may extend time if fraud concealed the cause of action. Since the plaintiff signalled an amendment to plead fraud, the limitation issue became doubly fact-laden.
4. No Termination of Entire Action. Even a defence win on limitation or “sophisticated customer” would leave the letter-based misrepresentation claims alive. Efficiency arguments therefore weakened.
5. Judicial Discretion. Following Campion et al., the Court exercised its discretion, preferring the orderly, single trial.

3.3 Potential Impact

• Higher Threshold for Preliminary Issue Applications Involving Foreign Law. Parties must now anticipate that any foreign-law component will likely doom a severance application unless both sides tender a joint statement of agreed foreign-law propositions.
• Guidance for Cross-Border Banking Litigation. Defendants in derivative-mis-selling cases cannot assume they will secure early limitation wins where international elements rear factual disputes.
• Re-affirmation of Plaintiff Autonomy in Pleadings. Plaintiffs are entitled to expand pleadings (e.g., s. 71 fraud) and rely on prospective amendments when resisting procedural motions.
• Cost Consequences. Courts may award costs against parties seeking premature fragmentation, deterring tactical preliminary-issue motions.

4. Complex Concepts Simplified

Preliminary Issue / Split Trial

A device allowing the court to decide a narrow legal point before the full trial. It saves time only if the point is pure law and undisputed facts support it.

Unitary Trial

The default Irish model: all questions of fact and law are tried together in one hearing.

Foreign Law as Fact

An Irish judge does not “know” foreign law judicially. Parties must call expert evidence to prove what that law is. If experts disagree, the court resolves the factual conflict just as it would any other factual dispute.

Sophisticated Customer Criteria

Thresholds in an FSA Undertaking excluding large or knowledgeable customers from a mis-selling redress scheme—e.g., turnover, balance-sheet size, derivative notional value, or client expertise.

Section 71 Statute of Limitations 1957 (Fraudulent Concealment)

If a defendant fraudulently conceals relevant facts, the limitation clock is paused until discovery. Comparable to s. 32 Limitation Act 1980 (England/Wales).

Interest Rate Derivative Product (Swap)

A contract exchanging fixed and floating interest payment streams; frequently mis-sold to property investors pre-2008.

5. Conclusion

Vico Properties restates, with contemporary cross-border flavour, the classic Irish rule: a preliminary issue is the exception, not the norm. Where foreign law is central, its status as a fact normally precludes early severance unless fully agreed. The decision arms litigants—particularly in banking, financial, and international commercial disputes—with clear guidance: come to court with agreed facts or expect to run the full course.

The ruling’s significance lies less in forging new substantive law than in buttressing procedural fairness and practicality: fragmented trials must yield to justice where factual complexity intrudes. Future litigants seeking expedited limitation defences must either secure consensus on foreign-law propositions or prepare for the long haul of a unitary trial.