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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Jurisdictional gateways: FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996

On 29 July 2020, the Court of Appeal handed down judgment in FS Cairo (Nile Plaza) LLC v Brownlie [2020] 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.

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