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FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45

Olinga Tahzib considers the recent decision of the Supreme Court in Brownlie (No 2) and asks what next in jurisdiction for tort claims in a post-Brexit England and Wales?

In January 2010, Lady Brownlie was on holiday in Egypt staying at the Four Seasons hotel. She booked through the concierge a jeep tour which went tragically wrong when the vehicle in which she, her husband Sir Ian Brownlie, Ian’s daughter Rebecca and her two sons were travelling crashed in the desert. Sir Ian and his daughter were both killed and Lady Brownlie suffered significant injuries. She pursued claims for damages under Egyptian law, in contract and in tort, for personal injuries and also dependency for wrongful death.

She started her claim in December 2012 and a challenge to the jurisdiction was made, resulting in a Supreme Court decision (Brownlie (No 1)) in which service of the claim form was set aside, because it had been revealed in the course of the Supreme Court proceedings that the hotel was operated by a different company in the FS group to the one which had been named on the claim form.

Lady Brownlie was given permission to apply to amend her claim form and before Nicol J was successful in obtaining that as well as permission to serve the claim form outside the jurisdiction in Egypt. FS Cairo’s appeal to the Court of Appeal was dismissed by a majority (Underhill and McCombe LJJ, Arnold LJ dissenting). Permission was given for a second visit to the Supreme Court.

There were two issues before the Supreme Court. First, the question which had vexed the courts in the first round of litigation, namely whether the requirement of ‘damage’ in England and Wales in CPR Practice Direction 6B paragraph 3.1(9)(a) was met where some of the damage was or will be sustained in England and Wales, regardless of the fact that other damage was sustained outside England and Wales.

Much of the argument echoed that which had previously been made before the Supreme Court in Brownlie No 1. There were three main and somewhat overlapping strands to the appellant’s case: first, it argued that only the damage sufficient to complete a cause of action in tort was material to the jurisdictional gateway; secondly, it suggested that an analogy with the Brussels regime in jurisdiction cases required a narrow reading to be applied or that the damage should be ‘direct’ as opposed to ‘indirect’; and thirdly, it was said that the economic tort cases should be applied by analogy to support a narrow reading.

The majority of the Supreme Court (Lord Lloyd-Jones, with Lords Burrows, Reed and Briggs agreeing), dismissed these arguments. The majority held that ‘damage’ in the jurisdictional gateways was not to be equated with the damage necessary to found a cause of action in tort and that divisions such as ‘direct’ and ‘indirect’ were elusive to apply and unnecessary in circumstances where even if the gateway was met, jurisdiction would not be established without the claim passing the ‘proper place’ test. The analogy with the EU rules on tort jurisdiction had been taken too generally and it was not desirable for English law to follow the EU rules where the purpose and wording were different.

The second issue concerned the way in which the case had been put in the amended particulars of claim. Lady Brownlie relied on Egyptian law but did not provide details of the content of that law in her pleaded case.  FS Cairo argued that this meant that there was no reasonable case to answer and challenged the reliance made by the judge at first instance on the ‘default’ rule that where no difference in the law is alleged, then the court should proceed on the basis that the law of England and Wales is the same as the applicable law.

The court determined this issue unanimously in favour of Lady Brownlie. Lord Leggatt gave the leading judgment, applying a fresh analysis to the existing case law. He explained that there are in fact two separate but related principles at work where the law of a country other than England and Wales applies. First, there is the ‘default rule’ which states that where neither party relies on the foreign law, then the court itself is not obliged to apply that law. Secondly, there is the evidential presumption rule which states that where a party has pleaded reliance on a law other than that of England and Wales, (and therefore the default rule is ousted), the court will presume similarity between the law of England and Wales and the material foreign law unless it is pleaded and proved to be materially different.

The outcome for Lady Brownlie is therefore that the jurisdiction challenge fails and her claim can proceed in England and Wales.

But what of future cases, many of which have been waiting in the wings following the UK’s withdrawal from the EU and the Brussels regime on 31 December 2020?

The starting point is that in tort cases where a claimant has sustained injury abroad, there is potential jurisdiction of the courts of England and Wales. In each case, the claimant will need to show that England and Wales is the proper place for the claim. This is more than a practicality test, but involves an assessment of whether the court is suitable to consider the claim, including considerations of applicable law, extent and nature of the dispute, witnesses, documents, costs, delay, whether there are proceedings elsewhere and funding for claims. It is likely that there will be more cases in which detailed consideration needs to be given to forum conveniens assessment.

It will also be interesting to see how the law develops in relation to the practical issues of pleading and proving foreign law, particularly now that a clear distinction has been drawn between the so-called ‘default rule’ and the presumption of similarity – two concepts which had been elided in some past decisions. Lord Leggatt’s judgment helpfully charts the history of the application of the presumption of similarity – both in England and Wales and in other common law jurisdictions – and distils from the body of decisions a series of principles which will guide the application of the presumption in future cases. Whilst there may be various reasons – both practical and tactical – why claimants in particular may seek to rely on the presumption at an early stage in proceedings, it is to be expected that parties will keep the matter under review as claims progress given Lord Leggatt’s health warning that reliance on the presumption at trial may be a “precarious course”.

Interestingly, Lord Leggatt suggests in his judgment that the courts might relax their requirements concerning the need for expert evidence and that in some cases it might be appropriate to receive evidence from informal sources, including the internet. Not all courts will necessarily feel confident to deal with foreign law issues in this fashion and it is likely to be extremely sensitive to the legal issues concerned.

Sarah Crowther QCDaniel Clarke and Joshua Cainer, of Outer Temple Chambers were instructed by Kingsley Napley LLP to act on behalf of Lady Brownlie in FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie [2021] UKSC 45.

Find out more

Olinga Tahzib is a highly sought after personal injury practitioner. He is ranked as one of only 6 ‘rising stars’ in the field of personal injury by Legal 500 2022. In addition to domestic claims, Olinga has experience of cases with an international element or where injuries are sustained abroad.

To find out more, contact Paul Barton on +44 (0)20 7427 4907 or Chris Rowe on +44 (0)20 7427 4911 for a confidential discussion.

Legal Blog & Publications, News, Travel 26 Oct, 2021

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Olinga Tahzib

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