Brownlie: absence of foreign law evidence is not always fatal

Our first blog about this case (by Alistair Kinley here) considered jurisdiction and the ‘gateway’ in the tort claim, which was agreed to be subject to Egyptian law. This piece now considers the second limb of the appeal in FS Cairo v Lady Brownlie [2021] UKSC 45, namely whether and to what extent the claimant must provide evidence of nature of the applicable foreign law (ie Egyptian) to demonstrate that she has a good arguable case / reasonable prospects of success on the merits under that applicable law.

Presumptions may be employed and evidence may be considered by the court when examining the merits test under the applicable foreign law. It is worth flagging in this introduction that this is quite a technical procedural area.

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Brownlie: a wide approach to “damage” for jurisdiction purposes

In the Supreme Court’s decision today in Brownlie v Four Seasons (Cairo), a 4:1 majority of the Justices allowed the underlying tort claim to proceed in England & Wales and rejected the defendant’s argument that there was no jurisdiction here.

The decision turns on the rather rarefied point of the meaning of “damage … sustained within the jurisdiction”, one of the necessary elements in securing the court’s permission to serving proceedings outside England & Wales. What the decision means is that 11 years after the death of her husband in the index accident in Egypt and after two separate visits to the Supreme Court, the claimant should now finally be able to progress this significant fatal accident claim.

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E-scooter incident data due to be published by government before year end

Recent news points to useful data relating to e-scooters becoming available over the next few months.

First is the statement last week from DfT Roads Minister Rachel MacLean that “We intend to publish data on e-scooters and other vehicle types which can be reliably identified from the free text field [in the STATS19 accident database used by police forces] alongside the annual Reported Road Casualties Great Britain statistics publication in September 2021. In the future, the STATS19 data collection system will be amended so that e-scooters (and similar) can be identified as a vehicle type”. Second is Ms MacLean’s confirmation just yesterday that in respect of the ongoing e-scooter trials, “An interim report summarizing findings from the data collected so far will be published in autumn 2021, with a final report due in spring 2022.”

We’ll be looking out for that interim report and will of course post our analysis of the DfT’s interim findings on this blog just as soon as we can after publication.


Written by Alistair Kinley, Director of Policy and Government Affairs at BLM