Supreme Court to hear landmark travel law case in FS Cairo (Nile Plaza) LLC v Brownlie

The Supreme Court, next week, will hear the appeal in FS Cairo (Nile Plaza) LLC v Brownlie which you can watch live here. The appeal has been expedited from the Court of Appeal’s judgment in July 2020 and raises important issues of private international law in cross-border tort claims.

When a claimant wishes to have a claim heard in the courts of England and Wales against a defendant who is located in a foreign country, they must apply to the courts for permission to serve their claim form out of the jurisdiction. Sarah Crowther QC, Daniel Clarke and Joshua Cainer of Outer Temple Chambers are instructed by Kingsley Napley LLP on behalf of Lady Brownlie in the appeal.

The Supreme Court is concerned with two issues arising out of Lady Brownlie’s application for permission to bring her claims for damages sustained in a road accident in Egypt in 2010 before the courts of England and Wales:

• (1) What is the scope of the gateway for tort claims under PD 6B, para 3.1(9)(a) which requires that the courts of England and Wales only have jurisdiction where “damage was sustained” within the jurisdiction?
• (2) Where foreign law applies to the claim, what are the obligations on the claimant to plead and prove that foreign law and how does this interact with the requirement that a claim must have “reasonable prospects of success? At the heart of this issue is a question as to the operation the long-standing rule of evidence and procedure that foreign law is presumed to be materially the same as English law until the defendant pleads and proves to the contrary (often referred to as the “presumption of similarity”).

Both the High Court (Nicol J) and a majority of the Court of Appeal (Underhill VP and McCombe LJ, Arnold LJ dissenting) held that the meaning of “damage” in the tort jurisdiction gateway meant “any substantial” damage. In so finding, they concluded that Lady Brownlie can bring her claim for damages before the courts of England and Wales. They also both held that Lady Brownlie was entitled to rely on the presumption that the Egyptian law of negligence and wrongful death for breach of contract was materially the same as English law and, on that basis, her claims had reasonable prospects of success. The defendant appeals on both of these grounds.

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Sarah Crowther QC has experience in all claims for injury, illness or accident with an international element, including disputes over jurisdiction and applicable law. She has appeared in recent high-profile cases in the Court of Appeal and Supreme Court and is experienced in working with expert evidence of foreign law and handling claims to which foreign law applies.

Daniel Clarke‘s practise focuses on personal injury. He has a particular specialism in cases with an international element, including claims raising conflicts of law and jurisdictional issues. He also has experience of acting in claims in other jurisdictions including in the Privy Council and in Jersey.

Joshua Cainer joined Chambers in 2020 following the successful completion of his pupillage. Joshua is building a busy practice across all of Chambers’ areas of practice and is also a member of the Attorney General’s Junior Junior Scheme. Joshua assisted Sarah and Daniel (as a pupil) in Brownlie (No. 2) v FS Cairo (Nile Plaza) LLC [2020] EWCA Civ 996.

For more information on Sarah, Daniel or Joshua please contact their practice management team: Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.

News 8 Jan, 2021