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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Another cross-border claim heads to the Supreme Court

Over a year ago we wrote about the outcome of the initial appeal in Roberts v SSAFA & AKV, a birth-related injury claim dating back to 2000 which turned on highly involved cross-border litigation issues. At the heart of it is the question of the applicable law between the two defendants (one a British charity and the other a German hospital, both of which had provided medical treatment when the claimant was born).

The previous blog summarised the complex legal points and speculated that the Court of Appeal’s decision last July might not mark the end of the proceedings. That has now proved to be so. The Supreme Court’s website noted, on 17 September, that permission to appeal had been granted back in July. However, the case name now refers just to the two defendants, which strongly suggests (a) that any remaining live issues are only as between them and (b) that the Roberts family’s claim may finally have been resolved. Assuming the issues to be argued before the Supreme Court are the same ones we summarised last year, it looks like the eventual decision about them should be an important one.

Alistair Kinley, Director of Policy & Government Affairs

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