Supreme Court clarifies that the English Courts can have jurisdiction over wrongdoing abroad

Thursday, 21 October 2021 | Marc Livingston

The Supreme Court has handed down Judgment in Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45 bringing to an end an issue that has been before the Courts in one way or another for the last 8 years – can Lady Brownlie, the widow of the eminent international lawyer, the late Sir Ian Brownlie QC, bring a claim for damages in England against a hotel in Egypt which she claims was (vicariously) responsible for his death in a road traffic accident in January 2010?

The Supreme Court, in a resounding 4-1 majority (with Lord Leggatt dissenting) decided that she could.

The claim has had a long and tortious procedural history, with this exact issue, having already been before the Supreme Court once before in Brownlie v Four Seasons [2017] UKSC 80. In that instance, during the hearing, it became apparent that Lady Brownlie had claimed against the wrong Four Seasons entity, albeit the Court considered that this was the fault of the Defendant rather than the Claimant. That being the case, the Supreme Court (after ordering the Defendant to reveal who the correct entity was) gave permission for the Claim Form to be amended to substitute in the correct Defendant entity. They then proceeded to give an opinion (which the Supreme Court Justices were keen to emphasise was ober dicta), with a 3-2 majority, that Lady Brownlie’s claim could be served out the jurisdiction.

However, it being just an opinion rather than binding, and the slim majority of that particular composition of the Supreme Court, meant that three years later, the parties found themselves back before the Supreme Court arguing the same issue.

For permission to be given to serve a claim form out of the jurisdiction, Lady Browlie had to establish:

(1) The claim fell within one of the ‘jurisdictional gateways’ contained within Paragraph 3.1 of the Practice Direction 6B to the Civil Procedure Rules;

(2) The claim had a reasonable prospect of success;

(3) The Courts of England and Wales were the appropriate place to hear the claim;

The main issue the Court had to determine was, for the purposes of Lady Brownlie’s claim in Tort against the Defendant, pursuant to paragraph 3.1(9)(a) of PD 6B, was the “damage” sustained within the jurisdiction? Clearly, in this instance, it was common ground that the accident that gave rise to the claim had taken place in Egypt, but Lady Brownlie submitted that the requirements of that gateway were satisfied if significant damage was sustained in England and Wales, specifically in that “[d]amage in the form of pain, suffering and loss of amenity resulting from personal injury…is not sustained at a single point in time when the injury is initially suffered or when a legal cause of action is completed but extends to the continuing damage suffered thereafter” (paragraph 34).

The Defendant disagreed and stated that the gateway was not designed to be used in these circumstances as “it only applies to found jurisdiction where initial or direct damage was sustained in England and Wales. In particular, it does not extend to any further consequences that the claimant may suffer as a result of the initial damage” (paragraph 33).

The Court however agreed with Lady Brownlie and held that that the word “damage” should not be limited to meaning the complete cause of action as that would be unduly restrictive. The word should reflect its “ordinary and natural meaning” and encapsulate “actionable harm, direct or indirect, caused by the wrongful act alleged” (paragraph 81). Furthermore, the Court found that the third requirement of the test for permission (that England and Wales is the appropriate forum for the claim) ought to allow the Court to exercise its discretion in such a way that would prevent claims where there is no substantial connection between the alleged wrongdoing and England passing through the gateway (paragraph 77-79).

Bearing all this in mind, the Court found that Lady Brownlie’s claims in tort do pass through the relevant gateway because they relate to actionable harm that was sustained in England and she should therefore be given permission to serve the claim out the jurisdiction (paragraph 83).

The Court also had to determine a second point (on which it was unanimous) concerning the extent to which Lady Brownlie had to evidence Egyptian law in order to pass the second requirement of the test for service out of jurisdiction (the claim has a reasonable prospect of success). It was common ground that the claims are subject to Egyptian law (paragraph 98). The Court found that where Lady Brownlie had not been able to provide evidence of Egyptian Law, the Court was entitled to rely on a presumption that English Law and Egyptian Law are materially similar enough for the purpose of establishing the reasonable prospects of her claim, in order for permission to be given for service out the jurisdiction (paragraphs 157-160).

The appeal was therefore dismissed, and Lady Brownlie was given permission to serve her claim out the jurisdiction.

It therefore seems to me like the Courts are now more likely to accept claims from English & Welsh litigants over wrongdoings that have taken place abroad so long as they are able to demonstrate that some degree of damage has occurred in England & Wales and that the English Courts are the appropriate place for the claim to be heard.

Marc is a senior Civil Solicitor at Janes and a Higher Court Advocate. He has an LLM in Public International Law from Queen Mary University London and is therefore very interested in civil cases with an international or cross-border element.

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