Accidents abroad: Supreme Court provides clarification on the tort gateway
FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent) [20.10.21]
Today, the Supreme Court has handed down its judgment on this tragic and long standing case.
Sir Prof Ian Brownlie QC and his daughter were fatally injured during an excursion which had been organised by the hotel, Four Seasons Cairo, whilst they were on holiday in Egypt. A claim was brought by Prof Brownlie’s widow to recover i) damages for her own personal injury, (ii) damages on behalf of her late husband’s estate and (iii) damages for bereavement and loss of dependency.
The claim has lasted for a number of years with the Supreme Court having considered a number of important points which relate to jurisdiction on two separate occasions.
Today’s judgment has provided clarification as to the circumstances where an English court will have jurisdiction when an accident happens abroad. It also sets out whether it is necessary for a claimant to plead the applicable law of the country where the accident has happened.
The tort gateway test
Under CPR 6.36, for a claimant to serve proceedings on a foreign defendant, they must firstly obtain the permission of the English court to do so. In so doing, the claimant must show the court that the following tests are satisfied:
- That the claim falls within one of the gateways in CPR PD 6B, paragraph 3.1
- That there is a serious issue to be tried on the merits
- That England is the appropriate forum for trial.
Where a claim is a tort, the claimant will need to satisfy the requirements of CPR PD 6B paragraph 3.1(9). This sets out that the claimant is only given permission to serve out of jurisdiction where:
- "(a) damage was sustained, or will be sustained, within the jurisdiction", or
- "(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction".
The point to be decided by the Supreme Court was "whether each of the tort claims advanced is a claim where damage was sustained within the jurisdiction".
The defendant submitted that a strict (and narrow) interpretation of damage should be applied. If this narrow interpretation was preferred by the court, then the damage would be limited to the country where the accident happened (in this case Egypt), and the claim would therefore not pass the gateway test.
The claimant contended, on the other hand, that the Supreme Court ought to apply a broader interpretation to the wording of CPR PD 6B paragraph 3.1(9) such that any subsequent loss of earnings, care requirements, ongoing pain and suffering etc suffered in England would be sufficient to meet the tort gateway test.
The Supreme Court has now decided by a four to one majority that CPR PD 6B paragraph 3.1(9) should be given its more extended meaning, so that continuing and significant losses within England or Wales would therefore be sufficient to meet the gateway test.
The Supreme Court made it clear that despite the broader interpretation applied to the tort gateway test, claimants still have to show that they meet the other elements necessary to establish jurisdiction and in particular, the need to meet the forum conveniens test which requires a claimant to show that England is the proper place to bring the action.
Lord Leggatt, who dissented from the majority on the tort gateway issue, stated that the English courts should "interpret the tort gateway in a way which gives effect to its purpose of requiring a real and substantial connection with the jurisdiction and which provides a legitimate and stable basis for the assumption of jurisdiction over a foreign defendant. I accordingly consider that the narrow interpretation of the tort gateway adopted in the cases involving economic torts is correct and that the first instance cases which have adopted the broad interpretation in relation to personal injury claims were wrongly decided on this point and should be overruled".
Further, Lord Leggatt stated that he had never heard of claims being rejected for not satisfying the forum conveniens test.
Approach to foreign law - presumption of similarity
Prior to the Supreme Court hearing in Brownlie I, it was common ground between the parties to the litigation that the applicable law was Egyptian law. After Brownlie I, the court allowed the claimant to amend her proceedings and substitute one defendant for another.
Whilst the amended claim form and particulars of claim stated that the damages claimed were pursuant to Egyptian law, they did not specify any actual rule or provision of the Egyptian law on which the claimant was seeking to rely on. In light of the second requirement of the jurisdiction gateway that the claim must have a reasonable prospect of success, it was the defendant’s argument that without pleading the claimant’s claim in Egyptian law substantively the claim had no prospect of success.
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. Further, the court found 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.
This decision is an important one in light of the post-Brexit landscape and the fact that the UK is not a party to the Lugano Convention.
The Supreme Court’s ruling judgment on the tort gateway will mean that more claimants will be able to meet the tort gateway test. As Lord Leggatt said, the "gateway" is "not so much a gateway…" but rather "an open territory with no fence". For example, in circumstances where someone is injured abroad and the injury sustained is sufficiently serious to cause ongoing pain or disability, or financial losses are incurred after the they return home to England, in theory, the tort gateway test will be met.
However, there will continue to be scope to challenge jurisdiction on the basis of forum conveniens and this is likely to be a fertile area of dispute in jurisdiction claims in the future.