Out-Law News | 26 Oct 2021 | 1:56 pm | 2 min. read
The court said the claim brought by Lady Brownlie passed the jurisdictional ‘gateway’ test allowing her to sue Egyptian company FS Cairo (Nile Plaza) in England and Wales. It also found that although her claims were pleaded under Egyptian law, Egyptian law is “materially similar” to English law, meaning the case is reasonably arguable for the purposes of establishing jurisdiction.
In a majority judgment, the Supreme Court said Lady Brownlie had established that although the primary injury was suffered in Egypt, she also sustained pain, suffering and physical injury in England.
In order to establish her claim, Lady Brownlie will in due course have to set out all the relevant provisions of Egyptian law and explain why they apply in her case
“Damage in this context is not confined to the element necessary to complete a cause of action but includes all the detriment, physical, financial and social which the claimant suffers as a result of the tortious conduct of the defendant,” the court said.
Litigation expert Chris Dryland of Pinsent Masons, the law firm behind Out-Law, said the gateway test would still need to be passed by other claimants wanting to sue in England after suffering harm overseas.
Dryland said: “The court rejected a restrictive approach to the concept of where ‘damage’ occurred as just meaning the damage necessary to complete a cause of action in tort, so in this case Egypt, where the accident took place. The court could look to where the ‘effects’ were experienced.”.
“Although on first analysis this might lead a potential claimant to think that the English courts will always have jurisdiction where harm has been suffered by an English resident, the Supreme Court pointed out that the jurisdictional ‘gateway’ was just one part of the test, and a claimant who wanted to serve a claim out of the jurisdiction would still need to satisfy the court that the claim has a reasonable prospect of success; and that England and Wales is the proper place in which to bring the claim,” he said.
The Supreme Court also examined the issue of the law under which the claims should be heard, which both sides agreed was Egyptian law. However, as Lady Brownlie had not formally pleaded the relevant terms of Egyptian law, the Supreme Court had to examine the limits of the presumption of similarity between legal systems. Lord Leggatt said it was impossible to state any “hard or fast rules” as to when the presumption of similarity should be employed, as it was fact-specific to each case.
The Supreme Court said, for the purposes of deciding whether it had jurisdiction, the court could treat Egyptian law as materially similar to English law. It dismissed both FS Cairo’s argument that Lady Brownlie had failed to show enough evidence of Egyptian law to identify a reasonable prospect of success, and her cross-appeal that the court could apply English law instead. However, Lady Brownlie was ordered to plead the specific principles and sources of Egyptian law on which she relied.
Litigation expert Richard Dickman of Pinsent Masons said: “It is well-known that foreign law is a question of fact, which has to be proved by evidence. The court can, in limited circumstances, assume that foreign law is the same as English law, in order to do practical justice between the parties. However, the Supreme Court recognised that it was harder to justify a failure to produce evidence of foreign law, as the relevant legislation was often available online. In order to establish her claim, Lady Brownlie will in due course have to set out all the relevant provisions of Egyptian law and explain why they apply in her case.”
Having established jurisdiction, Lady Brownlie can now bring her claims to the High Court. She is suing for damages after her husband, Sir Ian Brownlie QC, and his daughter Rebecca were killed in a road traffic accident while on an excursion on holiday in Egypt. Lady Brownlie and Rebecca’s daughters suffered serious injury.
The claim is for damages in Lady Brownlie’s own right, as executrix of her husband’s estate, and for bereavement and loss of dependency in her capacity as Sir Ian’s widow.