FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45

Lady Brownlie sought damages after a road accident in Egypt killed her husband and injured her. The Supreme Court considered whether tort claims could be served on an Egyptian hotel operator, interpreting the jurisdictional gateway requiring damage sustained within England. The majority held continuing pain and financial loss in England satisfied this requirement.

Facts

In January 2010, Lady Brownlie was seriously injured and her husband Sir Ian Brownlie was killed in a road accident during a limousine excursion in Egypt. The excursion had been booked from the Four Seasons Hotel Cairo at Nile Plaza. Lady Brownlie had telephoned the hotel from England to make the booking before departing on holiday. She brought claims in contract and tort for her own injuries, as executrix of her husband’s estate for wrongful death, and for bereavement and loss of dependency as his widow.

Procedural History

Initially, proceedings were brought against the wrong defendant company. Following a previous Supreme Court decision (Brownlie I), the claimant was permitted to substitute FS Cairo (Nile Plaza) LLC, an Egyptian company operating the hotel, as defendant. The present appeal concerns permission to serve proceedings out of the jurisdiction.

Issues

Two principal issues arose:

The Tort Gateway

Whether the claims in tort satisfied CPR Practice Direction 6B, paragraph 3.1(9)(a), which requires that ‘damage was sustained … within the jurisdiction’ for permission to serve proceedings out of the jurisdiction.

Foreign Law

Whether the claimant needed to adduce evidence of Egyptian law to show a reasonable prospect of success, or could rely on English law in the absence of satisfactory evidence of foreign law.

Judgment

The Tort Gateway (Majority: Lord Lloyd-Jones, Lord Reed, Lord Briggs, Lord Burrows)

The majority held that ‘damage’ in paragraph 3.1(9)(a) extends to actionable harm caused by the tortious act, including all bodily and consequential financial effects suffered by the claimant. Lord Lloyd-Jones rejected limiting ‘damage’ to that which completes a cause of action in tort or to direct damage only:

In my view, the word ‘damage’ in paragraph 3.1(9)(a) of Practice Direction 6B simply refers to actionable harm, direct or indirect, caused by the wrongful act alleged.

The majority distinguished the domestic rules from the Brussels regime, noting fundamental differences between the two systems. Under domestic rules, concerns about inappropriate exercise of jurisdiction are addressed through the forum non conveniens discretion. Lord Lloyd-Jones stated:

The damage of which Lady Brownlie complains has, in a very real sense, been sustained by her in this jurisdiction. She has largely endured the pain, suffering and loss of amenity consequent on her own personal injury in this jurisdiction and the financial consequences of her husband’s death have also largely been sustained in this jurisdiction.

Dissent on Tort Gateway (Lord Leggatt)

Lord Leggatt dissented, arguing that ground 9(a) applies only to damage directly caused by the defendant’s wrongful act. He considered the broad interpretation would effectively confer universal jurisdiction over foreign defendants whenever English residents are injured abroad:

The purpose of the jurisdictional gateways is clear. It is to identify a connection between a person situated abroad or an act done by that person on the one hand and this country on the other hand which is capable of providing a sufficient basis for the assertion by the English courts of jurisdiction over that person.

Foreign Law (Unanimous)

The court unanimously held that where foreign law applies but satisfactory evidence is lacking, the court may apply English law based on a presumption of similarity. Lord Leggatt explained:

Where it applies, the presumption of similarity is justified by a combination of three factors

including that legal systems often contain similar principles, that materiality is required, and that the presumption only operates until contrary evidence is adduced.

Implications

This decision significantly clarifies the scope of the tort jurisdictional gateway for service out of jurisdiction under domestic rules. The majority’s approach permits English residents injured abroad to bring proceedings in England where continuing damage is suffered within the jurisdiction. However, the forum non conveniens requirement remains a safeguard against inappropriate exercises of jurisdiction. The case also provides important guidance on the presumption of similarity of foreign law, confirming its continued validity while acknowledging its limits.

Verdict: Appeal dismissed by a majority of four to one. The claims in tort were held to pass through the jurisdictional gateway as damage was sustained within the jurisdiction. The court unanimously held that the claimant could rely on the presumption of similarity with English law to show a reasonable prospect of success in the absence of complete evidence of Egyptian law.

Source: FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45