The latest decision in the very-long running Brownlie fatal accident litigation was given on 1 October 2019.
The current phase of the case turns on the question of jurisdiction when UK residents are injured outside the EU, since the relevant EU regulation – Brussels 1 (recast) – does not apply. The case is of particular interest because the relevant government guidance confirms that Brussels 1 will be repealed on EU exit day and replaced by the (English) common law and statutory provisions on jurisdiction which currently apply to cases such as Brownlie.
The Brownlie claim arose out of a fatal accident in Egypt that happened during a driving safari booked by telephone by the claimant in England. It found its way to the Supreme Court in 2017 where it foundered (as noted in our earlier blog) due to the incorrect defendant (FS Holdings) having been pursued. As a result, the Supreme Court’s analysis of matters of jurisdiction is very much obiter, i.e. persuasive only.
The claimant subsequently sought to substitute the Cairo-based LLC which ran the hotel as the correct defendant. This was an intricate point involving parts of the Civil Procedure Rules as well as the Foreign Limitation Act 1984. The judge’s reasoning on substitution is both multi-layered and extremely detailed and is not addressed here.
As the (substitute) defendant, i.e. LLC, was outside the EU the jurisdictional tests were those in the common law and CPR Practice Direction 6B. The judge found that the claimant had, as is required, “a good arguable case” against LLC in contract and tort, despite the possibility of a limitation defence being argued under the applicable Egyptian law. He then had to consider the jurisdictional gateways in CPR Practice Direction 6B.
The relevant PD 6B gateway for claims in contract is that the contract “was made within the jurisdiction”. The judge was content that the evidence at the earlier stages showed that this gateway had been passed.
The relevant gateway for tort claims is that “damage was sustained, or will be sustained, within the jurisdiction”. Deciding this would turn whether damage is regarded as crystallising once and for all at the time of the incident or whether it can be said to arise on an ongoing basis over the post-incident period? The Supreme Court had been split on this, favouring the latter approach by a majority of 3:2. The judge adopted perhaps the safer option (for him) of following the majority view. On that basis, “damage” (in tort) was sustained in England and Wales, meaning that the tort gateway was also satisfied.
The final element to resolve was whether England and Wales was forum conveniens, i.e. the convenient forum for the claim? After looking at various aspects of the case, he found that “a holistic approach is required” and held that England and Wales was the convenient forum (when compared to proceeding in Egypt).
The judge therefore allowed the claims to proceed in England & Wales, although it is understood that permission to appeal has been sought.
As we move towards and beyond EU exit day, the three key elements of the jurisdiction test – good arguable case, passing the relevant gateway and forum conveniens – will inevitably become of greater interest to those dealing with accidents arising outside the UK.
Written by Alistair Kinley, director of policy and government affairs at BLM