On 29 July 2020, the Court of Appeal handed down judgment in FS Cairo (Nile Plaza) LLC v Brownlie  EWCA Civ 996, (“Brownlie”), the latest decision in a case that arises from a road traffic accident in January 2010. Legal proceedings were commenced as far back as December 2012. The accident occurred in Egypt when the claimant, her husband, his daughter and his daughter’s two children were travelling as passengers in a chauffeur-driven vehicle that left the road. Tragically, the claimant’s husband and his daughter were killed, and the claimant and children were seriously injured.
The claimant sued the defendant alleging vicarious tortious liability as a result of the fault of its driver – who was convicted of a criminal offence equivalent to manslaughter – and direct tortious and contractual liability for organising the fatal excursion. The claimant’s claims comprised (a) damages for her own pain, suffering and loss of amenity, (b) damages on behalf of her late husband’s estate and (c) damages for her bereavement and loss of dependency.
On the basis that the defendant (as substituted) was domiciled in Egypt, the claimant required the court’s permission to serve proceedings out of the jurisdiction, per CPR, r. 6.36. This required her to establish for each claim that (i) she had a “good arguable case” that one of the jurisdictional gateways in 6B PD, paragraph 3.1 applies; (ii) each claim has a real prospect of success; and (iii) the English courts were the proper forum in which to bring her claims. See our earlier blog here.
There were two grounds of appeal advanced by the defendant before the Court of Appeal. The first was whether the claim in tort satisfied the jurisdictional gateway under English law – CPR, PD 6B [3.1(9)(a)] – which turned on whether “damage” was sustained with the jurisdiction (i.e. England). The second was whether the clamant had a good arguable case in circumstances where she had not actually pleaded the applicable Egyptian law of contract and/or tort on which she relied. In this regard, the claimant relied on a ‘default rule’ on conflict of laws that, in the absence of satisfactory evidence of the applicable foreign law, the courts will apply English law.
The Court of Appeal’s decision
The defendant’s appeal was rejected by a majority decision, McCombe, LJ and Underhill, LJ found for the claimant whilst Arnold, LJ for the defendant. The Court ruled that the claims in tort fell within the jurisdictional gateway in 6B PD [3.1(9)(a)] because damage, namely the ongoing effects of the injury, including her pain, suffering and loss of amenity, had been sustained in England.
Moreover, the claimant was entitled to rely on the default rule that in the absence of satisfactory evidence of the applicable foreign law, the courts should apply English law to determine whether she had a “good arguable case”, i.e. the prospects of success of the direct tort and contractual claims.
The Court of Appeal agreed with the majority of the Supreme Court (albeit the Supreme Court’s comments were obiter). The judgment of the majority in the Court of Appeal now holds that “damage… [may] be sustained within the jurisdiction” as a result of personal injuries sustained in accidents abroad.
The dissenting judgment of Arnold, LJ found that, in order to pass the jurisdictional gateway, it must be established that direct damage was sustained in the jurisdiction; it was not sufficient that indirect consequences – comprising all three heads of damages sought by the claimant – were suffered in England.
’Good arguable case’ and the default rule
The dissenting judgment of Arnold LJ, held that the claimant had not demonstrated a good arguable case because of her failure to specifically plead and adduce evidence of Egyptian law.
Arnold, LJ considered that the default rule could not be relied upon in circumstances where the burden was on her to plead and prove Egyptian law. Whereas Underhill, LJ held that it was the party (in this case the defendant) asserting that the applicable foreign law was different to English law and who, therefore, had the burden of proving that was the case.
The last word on jurisdictional gateways?
Whilst the judgment of Arnold LJ appears persuasive, the majority decision determined that “damage… [may] be sustained within the jurisdiction” for the purposes of the jurisdictional gateways within CPR, 6B PD as a result of personal injuries sustained in accidents abroad. The view of the majority was that ‘significant damage’ had occurred in the jurisdiction, following the initial accident in Egypt, given she continued to suffer financially and physically in England.
On the point of foreign law of evidence, this case was concerned with an interlocutory application involving the court’s jurisdiction to try the claim(s); finalised evidence of foreign law had, understandably, not be secured at such an early stage of proceedings.
However, permission to serve proceedings out of the jurisdiction was granted, subject to a direction that the claimant should properly plead her case under Egyptian law. The claimant is now required to plead the content of Egyptian law on which she relies, not least because the defendant has preserved potential defences based on limitation and/or arguments that Egyptian law bars any concurrent tortious claim where liability is imposed under contract.
Parties would be well advised to engage with a foreign law expert at an early stage to identify matters of importance to plead and lead in evidence.
It is almost certain that the Court of Appeal’s judgment is unlikely to be the last word on the jurisdictional gateways within CPR, 6B PD, or even Brownlie itself.
Written by Sandeep Aujla and David Thompson, members of BLM’s cross border group (email@example.com / firstname.lastname@example.org).