FS Cairo (Nile Plaza) LLC v Lady Brownlie

The Supreme Court considered two principal issues arising from a fatal road accident in Egypt: (1) the scope of the tort gateway in Practice Direction 6B, paragraph 3.1(9)(a) to CPR (whether a claim in tort may be served out of the jurisdiction where "damage was sustained … within the jurisdiction"); and (2) the extent to which a claimant seeking permission to serve proceedings out of the jurisdiction must plead and prove the content of foreign law (Egyptian law) when that foreign law is the law applicable to the claims.

The court held by a majority (4–1) that the tort gateway is not limited to the immediate physical injury occurring at the place of the accident; "damage" in paragraph 3.1(9)(a) includes the physical and consequential financial effects of the tortious act and those effects may be sustained within England and Wales so as to found jurisdiction. The court emphasised that the domestic gateway must, however, be applied in conjunction with the forum non conveniens discretion (CPR r.6.37(3)).

Unanimously the court rejected the defendant’s contention that a claimant who asserts that foreign law is applicable must in every case be prevented from relying upon English law or the presumption of similarity where evidence of foreign law is absent or incomplete. The court confirmed that foreign law is a matter of fact to be pleaded and proved, but that where it is reasonable to do so a court may (for pragmatic reasons and particularly at an interlocutory stage) apply English law by default or rely on a presumption of similarity unless and until satisfactory evidence of the foreign law is produced. The Court of Appeal’s order requiring the claimant to plead the content of Egyptian law in the particulars of claim was upheld as a proper case-management measure.

Background and facts:

• The proceedings arise from a road-traffic accident in Egypt on 3 January 2010 in which Lady Brownlie was seriously injured and her husband Sir Ian Brownlie was killed. The claimant sued in contract and in tort against the operator of the hotel excursion which allegedly provided the vehicle and driver. The operator was an Egyptian company, FS Cairo (Nile Plaza) LLC.
• The litigation has a long procedural history: the wrong corporate defendant was originally sued, jurisdiction was challenged in multiple interlocutory applications, the Supreme Court in Brownlie I ([2017] UKSC 80) held that the originally sued company had no realistic prospect of liability and permitted substitution of the correct defendant, and the case returned to the English courts on the application to serve the reconstituted claim out of the jurisdiction on the Egyptian operator. The High Court and the Court of Appeal had previously permitted service; FS Cairo appealed to the Supreme Court.

Nature of the application and issues before the court:

• The claimant sought permission to serve the amended claim form out of the jurisdiction on the Egyptian defendant. Under the domestic rules this required showing (a) a good arguable case that the claim falls within a gateway in CPR PD 6B (the tort gateway at para 3.1(9)(a) was in issue for the tort claims), (b) a real prospect of success on the merits, and (c) that England and Wales is the proper forum for trial.
• Two legal issues were argued: (1) whether the tort gateway covers consequential/continuing damage suffered in England after an accident abroad (CPR PD 6B, para 3.1(9)(a)); and (2) whether the claimant was required to plead and adduce full evidence of Egyptian law (the applicable law) at the permission stage or could rely on English law or the presumption of similarity where the evidence of Egyptian law was incomplete.

Court’s reasoning and conclusions:

• Tort gateway: By majority (Lord Lloyd-Jones, Lord Reed, Lord Briggs and Lord Burrows) the court rejected the defendant’s narrow construction that "damage" must be the immediate or initial damage occurring at the place of the tort. The majority read "damage" in its ordinary meaning and held it to include the bodily and consequential financial effects of the tortious act; where those effects have been sustained in England they can found jurisdiction under PD 6B para 3.1(9)(a). The majority emphasised the difference between the domestic gateway and the EU Brussels special jurisdiction (article 5(3)/7(2)): the domestic regime retains a discretion (forum non conveniens) and therefore does not require the same restrictive approach as EU case law limiting jurisdiction to the place of immediate damage. Lord Leggatt dissented on that issue, considering the gateway should be limited to direct damage and that the tort gateway should be construed consistently with the narrower EU case-law distinction between direct and indirect damage.
• Foreign law and pleading: the court was unanimous that foreign law is a question of fact to be pleaded and proved, but that there is an established and pragmatic practice (expressed in Dicey and subsequent authorities) whereby, in the absence of satisfactory evidence of foreign law and where it is reasonable to do so, the court may apply English law or assume similarity with English law for interlocutory purposes. The court held that the claimant could rely on such a presumption at the permission stage to show a real prospect of success, but that it was appropriate case management to require the claimant to serve particulars specifying the content of Egyptian law (which the Court of Appeal had ordered) so that the defendant knows the case to be met.

Practical/ procedural posture:

• The Supreme Court by a majority dismissed the defendant’s appeal (thereby upholding the High Court and Court of Appeal decisions permitting service). The Court also affirmed the Court of Appeal’s case-management direction that the claimant should plead the content of Egyptian law in revised particulars of claim.

Appeal dismissed. By a majority of four to one the Supreme Court held that (1) the tort gateway in CPR Practice Direction 6B paragraph 3.1(9)(a) extends to physical and consequential financial effects of a tort sustained in England and Wales and is not confined to the immediate injury at the place of the accident; and (2) the claimant need not be prevented, at the interlocutory permission stage, from relying on English law or a presumption of similarity where foreign law evidence is incomplete, but it is appropriate as a case-management measure to require particulars of the content of the applicable foreign law. The Court therefore dismissed the defendant’s appeal and upheld the Court of Appeal’s direction that the claimant plead the content of Egyptian law in her particulars of claim.

The claim form was issued in December 2012 and jurisdiction was defended in interlocutory proceedings. Master Yoxall granted permission to serve out (15 April 2013) but that order was set aside by Master Cook (31 July 2013). Tugendhat J restored permission (27 February 2014) [2014] EWHC 273 (QB). The Court of Appeal allowed FSHI’s appeal in part ([2015] EWCA Civ 665) but the Supreme Court in Brownlie I ([2017] UKSC 80) allowed FSHI’s appeal on the merits and remitted the matter permitting amendment to substitute the correct defendant. Nicol J (QBD) subsequently authorised substitution and jurisdiction ([2019] EWHC 2533 (QB)); the Court of Appeal affirmed by majority ([2020] EWCA Civ 996). FS Cairo appealed to the Supreme Court and the appeal was dismissed ([2021] UKSC 45).