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Published 21 October 2021
Many, if not all, of those reading this article will be only too familiar with the background circumstances of what will no doubt become the seminal case of FS Cairo (Nile Plaza) LLC v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC)  UKSC 45. Briefly, for those who are not, this claim arose from a tragic road traffic accident which occurred in January 2010 in Egypt. Lady Brownlie and her husband, the late Sir Ian Brownlie CBE QC were partaking in a guided tour, booked through the Four Seasons Hotel in Cairo, at which they were staying. The vehicle they were travelling in as part of the tour crashed and, sadly, Sir Ian and one of their daughters were killed. Lady Brownlie herself suffered serious injury.
Lady Brownlie’s claim has a long procedural history, with her Claim Form having been issued back in 2012. Given the passage of time since it all began, let’s have a brief canter through how it has developed in those near nine years.
The claim was originally brought against two Defendants, namely Four Seasons Holdings Incorporated (a Canadian company which was thought to be the ultimate owner of the hotel from which the tour was booked) and Nova Park SAE, a local company in Egypt. Nova was not, however, served and the claim proceeded against Four Seasons Holdings alone.
With the named Defendant being domiciled in Canada, Lady Brownlie could not, of course, avail herself of the special jurisdictional rules provided for within the Brussels Regulation, which prevailed at that time. It was therefore at this very early stage of the claim that the first considerations of the common law jurisdictional gateways were had. In order to obtain permission from the court to serve her Claim Form out of the jurisdiction, it was necessary for Lady Brownlie to establish that her claim satisfied the criteria set out within Practice Direction B to Part 6 of the Civil Procedure Rules. Her claims against the Defendant were brought in both contract and tort, and she therefore sought permission on two limbs:
Master Yoxall was satisfied that Lady Brownlie’s claims met the threshold to satisfy the gateways and so granted the requisite permission to serve the Claim Form on Four Seasons Holdings. That decision was then appealed by the Defendant, which Master Cook upheld, and service of the Claim Form was set aside. The order of Master Cook was then successfully appealed by Lady Brownlie, with Mr Justice Tugendhat accepting that the English court had jurisdiction to hear the claims. On yet further appeal, the Court of Appeal upheld the High Court decision, though only in respect of the claims in contract. It did not consider that the court had jurisdiction to hear the claims in tort, as the ‘harm within the jurisdiction’ threshold was, in their view, not met.
The case was (for the first time) before the Supreme Court in May and July 2017. The court was asked to consider two appeals – one from the Defendant, that the English court had jurisdiction to hear the claims in contract, and one from the Claimant, that the English court did not have jurisdiction to hear the claims in tort. However, these issues were not, at that stage, determined. It transpired that Four Seasons Holdings was a non-trading holding company which neither owned nor operated the hotel. In the circumstances, the Supreme Court held that Lady Brownlie had failed to show that the claim against the Defendant had reasonable prospects of success, as required in order to establish jurisdiction by Part 6.37(1)(b) of the Civil Procedure Rules. Accordingly, it declared that it had no jurisdiction to hear the claim against Four Seasons Holdings. Lady Brownlie was, however, granted permission to apply to amend her pleadings, and the case was remitted back to the High Court.
In October 2019, Lady Brownlie was granted permission by Mr Justice Nicol to substitute and serve upon FS Cairo, a company domiciled in Egypt, as Defendant, and he held that the English courts had jurisdiction to hear her claims in both contract and tort. He did, however, grant the Defendant permission to appeal on the scope of the tort gateway, and on the question of whether there was a reasonable issue to be tried (a question considered later in this article). No permission was given to appeal the question as to whether or not the Claimant satisfied the contractual gateway. The Defendant applied to the Court of Appeal itself for such permission, but that application was refused. It was established thus, at that stage, that the court had jurisdiction to hear the claims in contract.
The Court of Appeal, by majority, affirmed the High Court decision, but the Defendant was granted permission to appeal to the Supreme Court on similar bases.
The Supreme Court was asked to consider whether Lady Brownlie’s claims in tort satisfied the criterion at PD6B para 3.1(9)(a) that damage was suffered within the jurisdiction. Her claims in tort are as follows:
The question was, in essence, whether either or all of those claims constituted ‘damage’ suffered within the jurisdiction. It was the Defendant’s case that ‘damage’ meant the direct initial harm suffered in the accident giving rise to the claim, and not the secondary consequential effects of that harm. The Claimant contended that such a narrow definition of ‘damage’ lacked legal basis and was contrary to the existing authority.
Lord Lloyd-Jones, in giving his leading judgment, opined that, if a person suffered serious injury in a road traffic accident, the pain, suffering and loss of amenity which they suffer is with them wherever they go. In Lady Brownlie’s case, that physical injury was suffered sequentially – first in Egypt and then in England. As such, he considered that the damage was, in a very real sense, sustained within the jurisdiction. That, he said, was equally true of the damage to Sir Ian’s estate, and of course the loss of dependency.
In arriving at his decision, Lord Lloyd-Jones compared the current wording of the gateway to that which used to exist under the old Rules of the Supreme Court. Rule 1(1)(f) of RSC Order 11 used to permit service out of the jurisdiction if
‘the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction’
The important point to note here is reference to ‘the’ damage. When the Civil Procedure Rules were introduced, the definite article (the ‘the’) was dropped, which Lord Lloyd Jones considers was intentional, and was intended to reflect the Court of Appeal decision in Metall und Rohstoff (which had itself established that it was it was enough to ground the claim in England if some significant damage had been sustained here). Consequently, he says, that damage is not limited to the direct damage, but should be damage in its wider, more natural sense. This interpretation is consistent with the previous line of first instance authority, such as Booth v Phillips and Cooley v Ramsey, with which most will be familiar.
One issue raised by the Defendant, and indeed in obiter by Lord Sumption, when the case was heard in the Supreme Court the first time around, was the extent to which the idea that jurisdiction should be where the harm is felt would open the floodgates to English claimants to pursue claims against any Defendant, located anywhere, for injury suffered anywhere. Lord Lloyd-Jones however dismissed this concern, suggesting that the Civil Procedure Rules provided a ‘safety valve’ in the form of the forum non conveniens test, rendering it necessary for the a claimant to show that England is the proper forum in which the bring the claim.
Accordingly, Lord Lloyd-Jones dismissed the appeal. Lords Reed, Briggs and Burrows agreed.
Lord Leggatt was the only dissenting voice. He opined that, if Lady Brownlie’s interpretation were correct, the tort gateway is not so much a gateway, but ‘an open territory with no fence’. His view was that, if that were correct, then jurisdiction could be found over a foreigner whose only connection to England would simply be that they happened to injure an English tourist. There was, in his view, no principled basis for such an assumption. Quite sensibly, he opined that the broadening of the gateway in the way proposed by Lady Brownlie would in fact render it an entirely ineffectual test because of the ease in which a claimant might show that there was a sufficiently close link to this country, by virtue of the harm suffered here.
What will resonate in particular for those working for, with or within insurers overseas is the suggestion by Lord Leggatt that in the absence of any prescribed procedure, different judges will take different approaches to the question of whether or not England is the proper place to bring a claim and that, in itself, will lead to vast amounts of satellite litigation, all at the expense of a foreign party who, in their eyes, should never be involved in proceedings here anyway. That, to us, seems to be a view more reflective of reality, than the suggestion that forum non conveniens is likely to be applied in a uniform way in every court in the land.
Foreign law and reasonable prospects of success…
The other issue which the Supreme Court had to determine was whether Lady Brownlie had shown that her claim enjoyed reasonable prospects of success, something required of her by Part 6.37(1)(b) in order to obtain permission to serve her Claim Form out of the jurisdiction.
It is agreed by the parties that Egyptian law applies to the substantive issues in this case, including the issues of liability and quantum, that being the law of the country where the accident occurred. The Defendant contended that Lady Brownlie had failed to adduce evidence of Egyptian law that showed that her claims had reasonable prospects. By contrast, Lady Brownlie’s position was that, in the absence of any evidence (from either party) on Egyptian law, the court should apply English law, and thus reasonable prospects were established.
The court, whilst ruling in favour of Lady Brownlie’s interests, held that in fact both parties were wrong. Lord Leggatt (with whom all others were in agreement) opined that the default application of English law could only apply in circumstances where the application of a foreign law was not pleaded. It is not, after all, for the court to apply the law of another land of its own motion. As it was established in this case that Egyptian law applied, the court could not simply apply English law. However, he found that in the absence of evidence to the contrary, it was reasonable for the court to adopt a ‘presumption of similarity’ and rely upon the presumption that Egyptian law was materially similar to English law, for the purpose of conducting the test to establish jurisdiction.
So what now? With large numbers of cases issued prior to the end of the Brexit transition period, the service of proceedings arising from accidents occurring overseas has slowed in recent months. It seems likely that there will now be an increase in those claims being issued here, and the water being tested once again. These cases must, however, be pursued, by those representing claimants, with a degree of trepidation. The Brownlie decision does not provide absolute clarity for cases where relatively minor injury is suffered. All of the authorities referred to, and indeed Lady Brownlie’s case itself, involved serious injury and substantial loss, and reference is made in those cases to the significance of loss. Would, for example, a simple broken arm that necessitates conservative treatment and little or no time off of work satisfy the definition of damage within the jurisdiction? How about a sprain? Where does the line get drawn? There seems little doubt that these issues will be the subject of satellite litigation and, as Lord Leggatt himself lamented, that will be at the cost of the overseas defendants making the challenge.
There is also the question of enforcement. Even if the English court accepts that it has jurisdiction to hear a case, with the falling away of the applicability of the Brussels regime to decisions of the English courts, to what extent will any judgment be recognised by a foreign court when a defendant refuses to acknowledge jurisdiction and refuses to pay? Some bilateral treaties precede the United Kingdom’s accession to the European Union but in a world where our political capital in Europe is at an all-time low, it is not hard to see English judgments, particularly those compelling payment of disproportionate costs, being quashed by foreign courts on the grounds of public policy.
Undoubtedly the next months and years will be interesting for those engaged in these issues, as the parameters of Brownlie are tried and tested. There will certainly be much discussion with overseas clients as to how these cases should be responded to going forward and, naturally, we are here to help and advise as required.
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