Head of DWF's European Group and specialist in cross-border litigation, Sara-Jane Eaton, examines the important issues of damage and jurisdictional gateways considered by the Court of Appeal in the continuing personal injury and dependency claim brought by Lady Brownlie in FS Cairo (Nile Plaza) LLC v Lady Brownlie [2020], with potentially far reaching consequences in cross border tortious claims.
By a majority but with two reasoned judgments in direct contradiction, the Court of Appeal followed obiter dicta comments in the earlier Supreme Court case involving the same motor accident in Egypt (Lady Brownlie v Four Seasons Hotel [2017]). The first Brownlie case failed at the Supreme Court as the incorrect defendant had been sued and the Claimant was subsequently granted permission to substitute the defendant. The Court of Appeal has now rejected an appeal by FS Cairo, not to permit the Claimant to proceed through the jurisdictional gateway under CPR Practice Direction 6B, paragraph 3.1, with the result that Lady Brownlie can now bring her claim before the courts of England and Wales.
Background
In 2010, Sir Ian Brownlie and his wife and close family were on holiday in Egypt, staying at the Four Seasons Hotel in Cairo, during which an excursion in a chauffeur driven car was booked by Lady Brownlie via the hotel concierge. During this excursion, the vehicle was involved in a collision resulting in the tragic deaths of Sir Brownlie and his daughter, with Lady Brownlie and two children in the party sustaining personal injuries. For further detail, see our previous note on the earlier Supreme Court decision in Lady Brownlie v Four Seasons Hotel [2017] here.
The jurisdictional test
As the accident occurred in Egypt, the Claimant required permission from the courts of England and Wales to serve out of jurisdiction for which it was necessary to satisfy three conditions, namely that:
- The case fell within at least one of the jurisdictional gateways in CPR PD6B, para 3.1;
- The claim had a reasonable prospect of success; and
- England and Wales was the proper place in which to bring the claim.
Court of Appeal outcome
The Court of Appeal rejected the appeal and so found that in an accident arising abroad that indirect losses suffered by a claimant whilst in England (such as loss of earnings and a dependency claim arising from the fatal accident which occurred abroad) are sufficient to satisfy the jurisdictional gateway requirements as set out in CPR PD6B para 3.1).
McCombe LJ decided that the proper question to ask was whether the Claimant had suffered any "significant damage" in the jurisdiction. He was not convinced by the narrow interpretation of "damage" proffered in obiter comments by Lords Sumption and Hughes in the first Brownlie decision (i.e. direct damage sustained in the location where the accident occurred) as set out in the Brussels regime under the recast Brussels Regulation (1215/2012) in relation to accidents arising in the EU. McCombe LJ saw no need to "import the legalistic niceties inherent in the concepts of direct and indirect damage."
Presumption by default
CPR rule 6 also required the Claimant to establish a "good arguable case" that for each claim, one of the jurisdictional gateways in CPR PD6B applies. The majority of the Court of Appeal judges found that the Claimant had discharged the burden of establishing reasonable prospects of success by relying on a presumption in default of evidence of the actual (Egyptian) applicable law, that English law would apply.
The majority concluded that the failure on the Claimant’s part to plead her claim in detail by reference to Egyptian law did not undermine her case in proving she had a reasonable prospect of success. Underhill LJ suggested that the burden is on the party wishing to rely on particular applicable law (in this case the Defendant) and is a salutary lesson in ensuring that foreign expert evidence is secured at an early stage.
Comment
This is undoubtedly a controversial decision as whilst McCombe and Underhill LJ found the more generous arguments in favour of the Claimant by the majority of the Supreme Court judges in the first Brownlie case more attractive, Arnold LJ (dissenting) decided that direct damage in the jurisdiction (i.e. in England and Wales) must be established and as direct damage was, in his view required, the Claimant failed to establish a good arguable case.
Arnold LJ echoed the concern of Lord Sumption in the earlier Brownlie judgment that without direct damage and sufficient connection, there was a danger of conferring on courts "a universal jurisdiction to entertain claims by English residents for the more serious personal injuries suffered anywhere in the world" and the possibility of opening the floodgates to such claims.
The decision clearly facilitates the claims brought by claimants who have suffered accidents outside of the European Union to satisfy the tort gateway test allowing English courts to claim jurisdiction. At the end of the transition period under the European Union (Withdrawal Agreement) Act 2020 (31st December 2020), the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 will come into effect and from then on, in the absence of reaching an agreement with the EU27 and in the absence of acceding to the Lugano Convention, there is a strong possibility that all claims in tort will be governed by CPR PD 6B 3.1(9)(a). This case therefore has potentially far-reaching consequences in cross-border tortious claims.
Next steps
It is understood that the Court of Appeal has granted permission to the Defendant to appeal their decision to the Supreme Court on an expedited basis and in view of the many conflicting judicial views arising in this case alone, the question of damage and jurisdictional gateways under CPR PD6B is clearly yet to be resolved.
For further information please contact Sara-Jane Eaton.
