This recent Supreme Court judgment has significant implications for all practitioners seeking to navigate issues relating to (i) service overseas, (ii) jurisdiction, and (iii) broader questions of the application and pleading of foreign law.
The Supreme Court has provided much needed clarity for the test in relation to serving claims out of the jurisdiction. Specifically, the Supreme Court has clarified two issues – (i) the tort gateway issue and (ii) the foreign law issue.
In 2010, the Claimant, Lady Brownlie, and her husband, Sir Ian Brownlie QC, were involved in a car accident while on holiday with their family in Egypt. Lady Brownlie was injured. Tragically, Sir Ian Brownlie QC was killed. They had been staying at Nile Plaza, a Four Seasons Hotel in Cairo. The hotel was operated by FS Cairo. While staying at the hotel, Lady Brownlie booked a guided driving tour. The tour was arranged by the hotel. The driver of the Brownlie’s vehicle was convicted of involuntary manslaughter.
In 2012, following the accident, Lady Brownlie brought claims – in both contract and tort – against Four Seasons Holdings Incorporated, a Canadian company. Those claims were for damages for injury and losses suffered as a result of the accident.
However, for jurisdictional reasons (the courts of England and Wales had no jurisdiction to try the claims against Four Seasons Holdings Incorporated), Lady Brownlie applied to amend her claim. She sought the High Court’s permission to bring her claim against FS Cairo instead. However, matters were somewhat more complicated than that. Given that Lady Brownlie wished to bring her claim against FS Cairo, an Egyptian company, she required permission to serve her claim out of the jurisdiction. The High Court granted her permission. The Court of Appeal (Arnold LJ dissenting) upheld that decision. Lady Brownlie was considered to have satisfied all three elements of the jurisdictional test in in respect of her tortious and contractual claims.
In order for Lady Brownlie to serve her claim out of the jurisdiction, she would have to establish three things: first, that there is a good arguable case that falls within the ‘jurisdictional gateway’ under CPR PD 6B para 3.1; second, that the claim has a reasonable prospect of success; and, third, that England and Wales was the proper, appropriate forum to bring the claim and for trial.
In the Supreme Court, FS Cairo appealed against the decisions concerning the tort gateway issue and the foreign law issue. In respect of the first of those issues, FS Cairo submitted that the claims in tort did not pass through the relevant gateway in para.3.1(9)(a), on the basis that the “damage” was not sustained in the jurisdiction. In relation to the second of those issues, FS Cairo submitted that neither of the tortious or contractual claims had a reasonable prospect of success because, FS Cairo submitted, Lady Brownlie had failed to adduce sufficient evidence of Egyptian law – the foreign law issue.
The tort gateway provides that, under CPR 6.36, for a Claimant to serve proceedings (a claim form) on a foreign defendant (out of the jurisdiction), they must first obtain the permission of the English court to do so. The Claimant’s claim in tort must satisfy the requirements of the relevant CPR jurisdictional gateway. This is important because it is an essential prerequisite for service and plays a part in determining whether an English court will have jurisdiction when an accident occurs abroad.
The Supreme Court was asked to consider the meaning of “damage” in para.3.1(9)(a). Specifically, the question that arose was whether, in accordance with those provisions, Lady Brownlie’s tortious claims met the criterion for the tort gateway in view of the fact that “damage was sustained…within the jurisdiction” [at 30]. The physical and financial damage caused by the wrongdoing were within the bounds of the meaning of the word “damage”. This follows from the Supreme Court’s view of the word “damage” in paragraph 3.1(9)(a) as referring to actionable harm, direct or indirect, caused by the wrongful act alleged – not links between the claim and the jurisdiction that are merely causal or adventitious [at 80]. It was held that it would have been unduly restrictive to limit the meaning of “damage” to the damage necessary to complete a cause of action in tort [at 49-51].
In respect of the tort gateway issue, it is of significance that, in future cases raising jurisdictional issues, a wider interpretation of “damage” should be supported when considering CPR PD 6B para.3.1(9)(a) – the practice direction governing service out of the jurisdiction.
This wider interpretation will apply to situations in which permission is required for service out of the jurisdiction. Damage sustained in the jurisdiction goes beyond immediate damage sustained in the country of the accident.
The foreign law issue relates to the question of whether the Claimant must provide evidence of foreign law so as to show that their claims have a reasonable prospect of success. In relation to the foreign law issue, practitioners have been provided with clear guidance as to the circumstances in which the two conceptually distinct rules – the default rule and the presumption of similarity – will be applicable. Foreign law should generally be pleaded when that is the law that the court must apply. However, the Supreme Court has clarified where there is an exception to this.
In cases where foreign law applied, the Supreme Court discussed the scope of its power in relation to the “default rule” and the “presumption of similarity”. In respect of the latter, if a party pleads that foreign law is applicable, the question arises as to whether the content of the foreign law is materially similar to English law or the matter in issue [at 126]. In this particular case, the question for the court was whether there was a presumption that Egyptian law was materially similar to English law. The Supreme Court found that the judge had been entitled to rely on that presumption.
In summary, FS Cairo’s appeal was dismissed. Lord Leggatt dissented on the tort gateway issue.
In respect of the tort gateway issue, the Supreme Court considered the distinction that had developed in EU law between direct and indirect damage. They held that distinction to be misplaced [at 81]. In any event, there are fundamental differences between the two systems [at 52-56]. Therefore, there was no reason to apply the distinction between those two types of damage that had developed in EU law. It was accepted that a Claimant might suffer damage in multiple places. The Supreme Court considered that the wider reading of the tort gateway was supported by a coherent line of authority. Nonetheless, the Supreme Court clarified that there has to be a substantial connection between the damage and the jurisdiction of England and Wales and that the common law principles of forum non conveniens will apply [at 77-79]. This is a mechanism which prevents the acceptance of jurisdiction where there is only a casual link between England and the claim. The pertinent question, for the purposes of the tort gateway, was whether Lady Brownlie’s claim in tort related to actionable harm that had been sustained by her in the jurisdiction of England and Wales. That question was answered in the affirmative. Therefore, those tortious claims were able to pass through the relevant gateway [at 83].
As referred to earlier in this article, Lord Leggatt dissented on this point. His reason for doing so was that he favoured a narrower interpretation of para.3.1(9)(a) [at 208]. He considered Egypt to be the place where all of the damage had been sustained. This, in turn, meant that he was of the view that Lady Brownlie’s tortious claims do not pass through the relevant gateway.
In respect of the foreign law issue, there were two conceptually different rules for the Supreme Court to consider – (i) the “default” rule and (ii) the “presumption of similarity”. The default rule treats English law as applicable in its own right in situations where foreign law is not pleaded . In essence, as of default, in the absence of foreign law, English law will apply. That is to say that, if a party does not rely on a particular rule of law, it is not the court’s place to apply that law of its own volition [at 113-116]. In circumstances where a party pleads foreign law, they must show that (i) they have a good claim or (ii) defence under the foreign law pleaded [at 116-117].
The section of the judgment considering pleading claims in foreign law has practical implications. As a practice point, it is of note that, although the Court of Appeal upheld the judge’s decision granting permission to serve the claim form on the Defendant in Egypt, the Claimant was ordered to serve a revised claim form and particulars of claim pleading the content of Egyptian law, including the relevant principles and sources, on which she relied and upon which each of her claims were based [at 161]. At the outset of claims, notwithstanding this judgment, prior to service, practitioners should continue to consider which law (English or foreign) should apply. Practitioners should also consider whether it is prudent to obtain expert evidence of foreign law at an early stage.
In respect of the presumption of similarity, this is, in essence, a rule of evidence. The presumption is that the content of the appliable foreign law was materially similar to English law in relation to the question at hand. The Supreme Court made it clear that only in fact-specific circumstances will the rule be engaged [at 122-125, 143-148]. Further, the presumption only operates in situations where foreign law is adduced.
In this case, there was no scope for, by default, applying English law [at 118]. This is because Egyptian law was pleaded in respect of Lady Brownlie’s claims. Nonetheless, the judge was entitled to rely on the presumption of similarity – that is, that Egyptian law is materially similar to English law. This allowed for the conclusion that, for the purposes of jurisdiction, Lady Brownlie’s claims are reasonably arguable [at 157-160].