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Foreign accident claims: clarity from the Supreme Court or an open territory with no fence?

The Supreme Court handed judgment in the case of Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45 on 20 October 2021 dealing with the question of whether an English Court had jurisdiction over an accident which occurred abroad.

The background to the case is intolerably sad. In 2010, Sir Prof Ian Brownlie KC and his daughter, Rebecca, were fatally injured during an excursion which had been organised by the hotel, Four Seasons Cairo, whilst they were on holiday in Egypt. Mrs Brownlie and Rebecca’s two children were also injured.

In 2012, Mrs Brownlie brought a claim for damages in tort and contract for her own personal injury, damages on behalf of her late husband’s estate for wrongful death and damages for bereavement and loss of dependency.

There were two issues before the Supreme Court:

CPR 6.36 – permission to serve abroad

Mrs Brownlie needed permission to serve her claim abroad on a foreign Defendant. In summary, she had to prove:

  1. That the claim fell within one of the jurisdictional gateways in CPR PD 6B, paragraph 3.1.
  2. That there was a serious issue to be tried on the merits.
  3. That England was the appropriate forum for trial and the Court ought to exercise its discretion to permit service out of the jurisdiction.

The first issue before the Court was whether the claim in tort passed through the gateway in CPR PD 6B, paragraph 3.1(9). This was whether the Claimant satisfied the requirement for suing a defendant who is outside the territorial jurisdiction of the English Courts that “damage was sustained … within the jurisdiction”.

In this case, the injury had been suffered abroad in Egypt and therefore the Defendant argued that the gateway was not satisfied as the damage was out of the jurisdiction. It argued it did not extend to any further consequences that the Claimant may suffer as a result of the initial damage. Conversely, the Claimant argued that she continued to suffer loss, such as loss of earnings, care etc in the UK and that was sufficient to cover the definition. She said that damage in the form of pain, suffering and loss of amenity resulting from personal injury is not sustained at a single point in time.

The Supreme Court has now decided by a four to one majority (Lords Reed, Lloyd-Jones, Briggs and Burrows JJSC), that CPR PD 6B paragraph 3.1(9) should be given its more extended meaning. This means that continuing and significant losses within England or Wales would therefore be sufficient to meet the gateway test.

This case now provides clarity that where a significant part of the damage is or will be sustained in England and Wales, notwithstanding initial or other damage also sustained outside the jurisdiction, the gateway will be satisfied. Lord Reid put it this way at paragraph 76 “….The damage of which Lady Brownlie complains has, in a very real sense, been sustained by her in this jurisdiction. She has largely endured the pain, suffering and loss of amenity consequent on her own personal injury in this jurisdiction and the financial consequences of her husband’s death have also largely been sustained in this jurisdiction…”

But what was the applicable law to be applied?

The second issue was whether the claim could satisfy the requirement that it must have a reasonable prospect of success. The rationale for that requirement is that the Court should not subject a foreign litigant to the inconvenience and expense of defending proceedings which are liable to be summarily dismissed.

That issue arose in the claim because it was common ground that the only claims which could be advanced were under Egyptian law. The amended claim form and particulars of claim described the relief sought as “damages pursuant to Egyptian law” but did not specify any rule or provision of Egyptian law.

The Claimant argued the proposition that, in a case to which foreign law applies, “in the absence of satisfactory evidence of foreign law, the Court will apply English law”. The Defendant argued that it was wrong in principle to apply English law or any presumption that the applicable foreign law was similar to English law.

On this issue, the Supreme Court was unanimous in finding that in the early stages of litigation, it was not necessary to plead in detail the applicable law of the country where the accident happened in order to show that the pleaded claims had a real prospect of success. This decision will have a real impact on how foreign accident claims are pleaded in the future.

The Court held that there was a presumption that the legal principles would be similar in terms of the foreign legal systems to that of English law. The presumption was that in the absence of evidence to the contrary, foreign law would be presumed to be the same as English law.

It should be noted though that where it asserted and established that the applicable law is a foreign system of law, there is simply no scope for applying English law in its own right and there is accordingly no scope for applying English law by default.

The Court made general observations applicable to other cases about the use of the presumption at paragraph 143 onwards:

  1. As a matter of broad generalisation, the presumption is more likely to be appropriate where the applicable foreign law is another common law system rather than a system based on Roman law.
  2. The presumption is less likely to be appropriate where the relevant domestic law is contained in a statute.
  3. It is open to the party who is asserting a claim or defence based on foreign law to adduce direct evidence of the content of the relevant foreign law rather than take the risk of relying on the presumption.
  4. The procedural context in which the presumption is relied on matters. There is more scope for relying on the presumption of similarity at an early stage of proceedings when all that a party needs to show in order to pursue a claim is that it has a real prospect of success.

In conclusion, the judgment on the tort gateway has wider implications for jurisdiction in relation to tort claims outside of the personal injury context, particularly those founded on economic loss or financial damage. It is likely the Courts may now see more claims brought in the English Courts involving accidents abroad relying on this case. Lord Leggit, who dissented on the first issue, said it was “an open territory with no fence“.  Only time will tell, but one thing that is certain, is that further challenges and disputes are likely in this area.

Gemma Witherington

21 October 2021

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