On 20 October 2021, the Supreme Court of the United Kingdom delivered its judgment in FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent).
The most important issue before the court was whether English court should be able to retain jurisdiction in tort cases on the ground that an indirect damage was suffered in the United Kingdom. The applicable provision (CPR Practice Direction 6B) refers to “damage” suffered in England, and the court held that as it does not distinguish between direct and indirect damage, it should be considered as including both.
Interestingly, the argument was made that the English rule was drafted on the model of EU law, which limits jurisdiction to the court of the place of direct damage. It is rejected as an overgeneralisation.
So much for those who thought that EU law would continue to influence the development of English private international law.
Bye bye Brussels, bye bye Marinari.
On 3 January 2010, Lady Brownlie’s husband was killed in a car accident in Egypt during an excursion booked through the Four Seasons Hotel Cairo, a hotel operated by FS Cairo. Lady Brownlie was injured in the same accident. The driver was convicted of involuntary manslaughter. In December 2012, Lady Brownlie brought claims in tort and contract in the High Court against Four Seasons Holdings Incorporated, a Canadian company, for damages for injury and losses suffered as a result of the accident.
In 2018 the Supreme Court held that the evidence showed that Four Seasons Holdings Incorporated was a non-trading holding company which neither owned nor operated the Hotel and that therefore the courts of England and Wales had no jurisdiction to try the claims against it. The Supreme Court remitted ancillary matters to the High Court and ordered that the Claimant had permission to apply to correct the name of the Defendant, to substitute or to add a party to the proceedings.
Lady Brownlie applied to the High Court to amend her claim so that it could be brought against FS Cairo instead. Permission to amend her claim was granted but, because FS Cairo is an Egyptian company, Lady Brownlie also requires permission to serve her claim out of the jurisdiction.
In order to serve her claim outside the jurisdiction, English law requires Lady Brownlie to show, in respect of each claim in contract and tort, that: (1) it falls within a ‘jurisdictional gateway’ under CPR Practice Direction 6B; (2) it is a claim that has a reasonable prospect of success; and (3) England and Wales is the proper place in which to bring the claim. The High Court and a majority of the Court of Appeal (Arnold LJ dissenting) decided that Lady Brownlie had met all three elements of this test in respect of her claims in tort and contract. Lady Brownlie was therefore granted permission to serve her claims on FS Cairo. FS Cairo appeals to the Supreme Court only against the decisions concerning the first two elements of the test.
The tort gateway issue
Before permission may be given for service of a claim form outside the jurisdiction, the claimant must establish that: (1) the claim falls within one of the gateways set out in paragraph 3.1 of Practice Direction (“PD“) 6B to the CPR; (2) the claim has a reasonable prospect of success; and (3) England and Wales is the appropriate forum in which to bring the claim . Those conditions are the domestic rules regarding service out of the jurisdiction; they may be contrasted with the EU system [28-29].
Lady Brownlie submits that her tortious claims meet the criterion for the gateway in paragraph 3.1(9)(a) of PD 6B, namely that “damage was sustained… within the jurisdiction” . The appellant submits that paragraph 3.1(9)(a) only founds jurisdiction where the initial or direct damage was sustained in England and Wales. Lady Brownlie instead maintains that the requirements of the gateway are satisfied if significant damage is sustained in the jurisdiction [33-34].
The Supreme Court considers that the word “damage” in paragraph 3.1(9)(a) refers to actionable harm, direct or indirect, caused by the wrongful act alleged . Its meaning should not be limited to the damage necessary to complete a cause of action in tort because such an approach is unduly restrictive [49-51]. The notion that paragraph 3.1(9)(a) should be interpreted in light of the distinction between direct and indirect damage which has developed in EU law is also misplaced . It is an over generalisation to state that the gateway was drafted in order to assimilate the domestic rules with the EU system. In any event, there are fundamental differences between the two systems [52-56]. The additional requirement that England is the appropriate forum in which to bring a claim prevents the acceptance of jurisdiction in situations where there is no substantial connection between the wrongdoing and England [77-79]. Lady Brownlie’s tortious claims relate to actionable harm which was sustained in England; they therefore pass through the relevant gateway .
Lord Leggatt dissents on this issue. He favours a narrower interpretation of paragraph 3.1(9)(a) . He considers that Lady Brownlie’s tortious claims do not pass through the relevant gateway because Egypt is the place where all of the damage in this claim was sustained .
The Foreign Law Issue
It is common ground that Lady Brownlie’s claims are governed by Egyptian law . One of the requirements for obtaining permission for service out of the jurisdiction is that the claim as pleaded has a reasonable prospect of success [99-100]. The appellant argues that Lady Brownlie has failed to show that certain of her claims have a reasonable prospect of success because she has not adduced sufficient evidence of Egyptian law. Lady Brownlie submits that it is sufficient to rely on the rule that in the absence of satisfactory evidence of foreign law the court will apply English law [102-103, 105-106].
The Supreme Court distinguishes between two conceptually distinct rules: the ‘default rule’ on the one hand and the ‘presumption of similarity’ on the other. The default rule is not concerned with establishing the content of foreign law but treats English law as applicable in its own right when foreign law is not pleaded . The justification underlying the default rule is that, if a party decides not to rely on a particular rule of law, it is not for the court to apply it of its own motion [113-116]. However, if a party pleads that foreign law is applicable they must then show that they have a good claim or defence under that law [116-117]. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be . It is engaged only where it is reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue . The presumption of similarity is thus only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence . Because the application of the presumption of similarity is fact-specific, it is impossible to state any hard and fast rules as to when it may properly be employed (although some general observations may nonetheless be made) [122-125, 143-148].
Lady Brownlie’s claims are pleaded under Egyptian law. There is thus no scope for applying English law by default . However, the judge was entitled to rely on the presumption that Egyptian law is materially similar to English law in concluding that Lady Brownlie’s claims are reasonably arguable for the purposes of establishing jurisdiction [157-160].
Excellent summary! I think the view of the UKSC that the notion of damage in the CPR is different from EU law is not entirely indefensible. While the UK was an EU Member State, the CPR applied only to third-country defendants and did not overlap with the Brussels Ib Regulation. It is an entirely national regime. Still, the idea that the damage of an accident in Egypt occurs in the UK seems far-fetched.
I certainly agree that there was no legal reason for the English common law of jurisdiction to be deduced from EU principles. On the top of it, the EU did not even allow the UK to accede to the Lugano Convention, so autonomous English law should be.
Not surprising considering the disposition in  UKSC 80.
Though the case is sad when it involves death, in many states in the US, tort principles from the Restatement (Second) of Torts apply when the injury and conduct have occurred in the same state. These issues typical in wrongful death, premise liability cases. The proper law regarding injurious acts is the law of the country where the act was committed. The lex loci delicti determines the substantive rights of the parties. The second question that arises is foreign’s law applicability to domestic U.S. cases. The answer depends whether there is extensive business contacts with the state under long-arm statute.
The relevant jurisdictional rule refers to to damage being sustained within the jurisdiction. The terminology, and judicial exegesis, of (direct) damage occurring and (indirect) damage suffered is part of another system and quite beside the point. The dictionary defines ‘sustain’ as ‘undergo or suffer (something unpleasant, especially an injury)’. How anyone could argue that Lady Brownlie did not suffer anything unpleasant in England is to me a mystery…
I guess that we would agree that the issue is not so much whether Lady Brownlie suffered something unpleasant in England, but whether it is legitimate for English courts to retain jurisdiction. The answer is that, while the determination of the place of damage is the end of the story under the Brussels Ibis Regulation (and in most civil law systems), it is only the beginning under English law, as the plaintiff will then have to demonstrate that England is the forum conveniens. In this context, I must say I am not shocked that English courts would define broadly the place of damage.
The Supreme Court of Canada, in its common law jurisprudence, has expressed reservations regarding whether “damages sustained” can provide a presumptive “real and substantive connection” for jurisdiction against a foreign defendant in a tort claim where the alleged negligence and (initial) injury occurred elsewhere (Club Resorts v Van Breda, 2012 SCC 17 para 89: “The problem with accepting unreservedly that if damage is sustained at a particular place, the claim presumptively falls within the jurisdiction of the courts of the place, is that this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one. As a result, presumptive effect cannot be accorded to this connecting factor.”) Admittedly the facts in the Brownlie case may well not be characterized as having “only a limited relationship” with England.
Interestingly some Canadian provinces have since revised their rules on service ex juris to remove the automatic ground of “damages in the province irrespective of where the tort was committed”, meaning that a claimant would have to seek leave to serve out in such a case. I don’t know of any case where that has occurred, although permission to serve ex juris, on its own, would not give rise to a public judgment.
I would repeat the same comment. If I am correct, the English law of jurisdiction is not that English courts would retain ‘unreservedly’ jurisdiction if damage (including indirect damage) was sustained in England. They would accept to serve out of the jurisdiction, and retain jurisdiction, if England is also the forum conveniens.
My question to you, therefore, is whether Canadian courts conduct a similar analysis, or whether the issue before the Court was whether damage sustained in Canada alone would suffce to grant jurisdiction to a Canadian court.
Canadian courts (in common law provinces, ie outside Quebec) used to link jurisdiction to service, which was typically not subject to leave of the court, even for service ex juris. It was then up to the defendant whether to raise a forum non conveniens argument on a motion to stay proceedings. In Club Resorts v Van Breda, the Supreme Court asserted that jurisdiction no longer arises from service alone but rather needs to be justified by either a connection to the defendant, consent or a real and substantial connection to the facts underlying the claim. In theory this means that even if properly served ex juris, a defendant can challenge the jurisdictional basis itself and, if that fails, raise a forum non conveniens argument. In practice, however, it is obvious that the service rules should closely align with the jurisdictional grounds, which explains why those rules were amended to eliminate service ex juris based solely on damages in the jurisdiction.
To answer your question more directly, the issue of jurisdiction remains separate from the forum (non) conveniens one under this analysis. The claimant need not show that the court is forum conveniens in order to commence an action, but might eventually be required to make such an argument in response to a defendant’s request for a stay.
I wonder whether any English judgment in the Brownlie case would be enforced in Egypt, assuming the defendant has no assets elsewhere. There would certainly be grounds to oppose enforcement in Canada on (indirect) jurisdictional grounds.
I very much enjoyed your wonderful summary.
In my opinion, the distinction between the presumption of similarity and default rule is hard to draw. Do they not result in the same consequence? I have always treated them as one and the same as a common law scholar. I would have to read this case carefully.
Second, is it not possible that as a matter of policy, majority of English/UK judges take the position that indirect damage qualifies as damage sustained within jurisdiction for the purposes of serve out, in order not to unduly circumscribe the jurisdiction of English courts? This also benefits UK in terms of litigation business they attract to their forum.
in theory, the distinction between default application of English law and presumption of similarity seems pretty clear. Unlike most civil law jurisdictions, it is possible in England not to plead foreign law. In such cases, English law is applied, by default. The presumption of similarity comes into play when the application of foreign law is pleaded, but the party pleading it fails to demonstrate its content to the satisfaction of the court. The issue which arose in this case was whether the plaintiff could both plead foreign law, and then bring no evidence on one particular issue, and thus request the application of English law.
On the jurisdictional point, there are clearly benefits arising from opening the doors of English courts. But these doors are not wide open. The issue is whether the forum conveniens requirement sufficiently limits their jurisdiction. This was on this that the justices disagreed.
Thank you for your informative response Gilles. I do not agree that FNC will be a gate keeper. English judges more often than not assume jurisdiction under the FNC doctrine, even where England does not have substantial connection with the case. If England is not the natural forum, English judges may hold that justice cannot be substantially done in the foreign forum in issue, and then assume jurisdiction.
Really ? If the English court concludes on the evidence before it that justice cannot be substantially be done in the foreign forum, what is it supposed to do ? The common law and Article 6 ECHR both point to the only admissible answer.