Lady Brownlie was seriously injured, and her husband killed, in a road accident in Egypt on a hotel excursion she had booked from England. By a majority, the Supreme Court held that her tort claims against the Egyptian hotel operator passed the English tort gateway because significant damage was sustained in England, not only at the scene of the crash. The Court unanimously held that she had shown a real prospect of success for service out, although Egyptian law governs the claims and she must plead it. The operator’s appeal was dismissed. This was not a finding of liability.
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The accident and the claims
Lady Brownlie was injured and her husband was killed when a vehicle crashed on a hotel excursion in Egypt. She had booked the excursion by telephone from England.
Lady Brownlie had booked the hotel stay and, before leaving England, had telephoned the hotel to book the excursion. She claimed damages under Egyptian law, in contract and in tort, in three capacities: for her own injuries; as Sir Ian’s executrix, for his wrongful death; and as his widow, for bereavement and loss of dependency. In contract she alleged an implied obligation to take reasonable care for their safety. In tort she alleged both a direct duty of care and vicarious liability for the driver’s negligence.
The claim form, issued in December 2012, originally named the wrong company in the Four Seasons group. In the 2017 appeal against Four Seasons Holdings, the Supreme Court held that there was no realistic prospect of a claim against that company, but allowed Lady Brownlie to seek to correct the defendant. She substituted FS Cairo (Nile Plaza) LLC, the Egyptian hotel operator, and sought permission to serve it in Egypt.
The jurisdiction test
The defendant was not domiciled in an EU member state, so the Brussels regime did not apply. Permission to serve out required a good arguable case that a claim fell within a gateway in CPR Practice Direction 6B, a serious issue to be tried, and that England was the proper place for the claim. Nicol J held that the contract claims passed the contract gateway and that England was the appropriate forum for every claim. There was no appeal on those points.
Two issues remained. First, did the tort claims pass the gateway for a claim in tort where damage was sustained, or will be sustained, within the jurisdiction? The alternative limb, an act committed within the jurisdiction, could not apply: the relevant conduct occurred in Egypt. Secondly, did the contract and tort claims have a reasonable prospect of success when only Egyptian law claims could be advanced?
What “damage” means
The operator argued that the gateway covers only initial or direct damage. In a road accident, it said, that is the physical harm suffered when and where the claimant is injured, so an accident outside England can never pass the gateway. Later pain, disability and financial loss in England would be irrelevant. Lady Brownlie argued that some significant damage in England was enough, including continuing pain, suffering and loss of amenity and the financial consequences of the deaths.
Lord Lloyd-Jones, with whom Lord Reed, Lord Briggs and Lord Burrows agreed, rejected that limit. The gateway asks which court is an appropriate forum. It is not a rule about when a tort is complete. Some torts require no damage at all, and even where damage is required there is no reason to give special jurisdictional significance to the place where the cause of action happened to be completed. In its ordinary meaning, “damage” includes the physical and financial harm caused by the wrongdoing. Some significant damage in England is enough. That reading follows the purpose of the gateway and the earlier decision that not all the damage need be suffered in one place.
The majority also refused to copy the EU distinction between direct and indirect damage. The English wording had been widened so that the domestic gateway would not be narrower than the Brussels special jurisdiction in tort, but it was not drafted in the same terms and was not tied to later Court of Justice decisions restricting that exceptional jurisdiction. Those decisions protect a mandatory EU scheme with no forum discretion. Under the English rules, a gateway alone does not found jurisdiction. The claimant must also show that England is the proper place for the claim. That structured discretion is the safeguard against a merely casual link, not a narrow reading of “damage”.
Lord Lloyd-Jones therefore treated the word as covering actionable harm, whether direct or indirect, caused by the alleged wrong. All three tort claims passed the gateway. Pain, suffering and loss of amenity from Lady Brownlie’s own injuries continued in England. The injury to Sir Ian’s estate, and her bereavement and loss of dependency, could also properly be regarded as sustained here. Nicol J’s conclusion that England was the proper forum, from which there was no appeal, showed that the connection was not adventitious.
Lord Leggatt dissented on the gateway. In his view the relevant harm had to be directly caused by the wrongful act. The immediate injuries were sustained in Egypt. Continuing pain or financial loss in England did not suffice. He considered that the majority gave too much weight to the discretionary inquiry into the proper forum.
Egyptian law and a real prospect of success
On the second issue the Court was unanimous and agreed with Lord Leggatt. Egyptian law governed the contract under the Rome I Regulation, because the hotel operator provided the service and had its central administration in Egypt. It governed the tort claims under the Rome II Regulation, because Egypt was the country in which the damage occurred for that purpose. The amended claim sought damages pursuant to Egyptian law but did not identify the Egyptian rules relied on. Experts had given written evidence, mainly because the operator said the claims were time-barred.
Two ideas had to be separated. If neither party relies on foreign law, English procedure allows the court to apply English law. That default rule was unavailable: Lady Brownlie had claimed under Egyptian law, so English domestic law could not be applied in its own right. What remained was an evidential presumption. Where it is reasonable to expect that the foreign law is materially similar, and there is no satisfactory evidence to the contrary, the court may proceed on that basis. The presumption does not reverse the legal burden of proof, and it is not used where similarity is unlikely. At the service-out stage the claimant need only show a real prospect of success, the same standard as for resisting summary judgment. That is not a trial of the foreign law.
The Court could reasonably expect Egyptian law to impose some obligation of care on a hotel arranging a chauffeur-driven excursion. The expert evidence left arguable questions about limitation and the relationship between the claims in contract and in tort. Permission to serve required only a real prospect of success.
The Court of Appeal had nevertheless required revised particulars setting out the Egyptian law, principles and sources relied on for each claim. The Supreme Court upheld that requirement. Once Egyptian law is accepted to apply, the operator is entitled to know whether the claimant will rely on specific Egyptian rules or only on the presumption. Reliance on the presumption does not suspend ordinary pleading rules.
Verdict: The Court dismissed the operator’s appeal. By four votes to one the tort claims passed the English gateway. All five justices agreed that the claims under Egyptian law had a real prospect of success. Lady Brownlie still had to plead her case under that law. Liability and damages remained for trial.
Source: FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45
