20
Oct
21
Articles, Travel & Cross Border Claims
Case Update: The Supreme Court Judgment in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45

The Supreme Court handed down the latest judgment in the long running litigation in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45 this morning.

Seasoned practitioners will be aware of the long and tortuous history of the litigation, which has been winding its way through the higher courts for almost a decade now, but it is worth reminding ourselves of the facts before we go on to consider the legal issues raised by the case, which, it is hard to believe, is still only at the threshold of the English court system.

The facts

As is so often the way with interesting legal precedents, the facts giving rise to the claim get lost in the legal analysis. But we should not lose sight of the fact that the facts in the Brownlie case are particularly tragic.

In January 2010, Lady Brownlie and her husband, his daughter, son-in-law and two grandchildren were on a holiday in Egypt and were staying at the Four Seasons Hotel Cairo at Nile Plaza. On a previous visit to the same hotel Lady Brownlie had picked up at the hotel a leaflet advertising certain tours that the hotel provided. In advance of the holiday in question, she had booked, over the telephone with the hotel’s concierge, one such tour involving a guided excursion to Fayoum in a chauffeur-driven car. The tour took place on 3rd January 2010; the passengers were Lady Brownlie and Sir Ian, his daughter and her two children. During the journey, the chauffeur-driven vehicle left the road and crashed. Sir Ian and his daughter were killed and Lady Brownlie and the two children were seriously injured. The driver was subsequently convicted in Egypt of involuntary manslaughter.

The first judgment of the Supreme Court: Four Seasons Holdings Inc v Brownlie [2017] UKSC 80

Lady Brownlie claims that the Appellant, an Egyptian emanation of a large worldwide chain of hotels, is liable to her in damages for injury and losses suffered as a result of the accident.

In December 2012 she 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. The claim wound its way through the High Court and Court of Appeal, until in 2018 the Supreme Court concluded 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. In the light of the company’s jiggery pokery around the identity of the correct Defendant, however (described by Lord Clarke of Stone-cum-Ebony as ‘ducking and weaving’ on the part of FS Holdings), the Supreme Court 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, and the matter was remitted down to the High Court.

The second judgment of the Court of Appeal: FS Cairo v Brownlie [2020] EWCA Civ 996

Because the new Defendant is domiciled in Egypt, in order to serve proceedings it was necessary for Lady Brownlie to obtain permission to serve it outside the jurisdiction of England and Wales. In order to do so she had to show, in respect of each claim, that:

(1) it falls within a ‘jurisdictional gateway’ under CPR6PD6B;

(2) it 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 the test in respect of her claims both in tort and contract. Lady Brownlie was therefore granted permission to serve her claims on FS Cairo. FS Cairo appealed to the Supreme Court only against the decisions concerning the first two elements of the test.

The issues for the Supreme Court: FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45

The Supreme Court had already considered the tort gateway and the prospects of success in the claim against Four Seasons Holdings, and had found in Lady Brownlie’s favour, albeit obiter. Nevertheless, Reed, Lloyd-Jones, Briggs, Leggatt and Burrows JSC were asked to reconsider these issues in the second round of the litigation. They addressed the following issues:

  1. Whether the Court of Appeal was wrong to hold that the jurisdictional gateway for claims in tort under CPR6BPD3.1(9)(a) was satisfied in this case, in which the accident which gave rise to the claims occurred in Egypt;
  2. Whether the Court of Appeal was wrong to hold that the Claimant had discharged the burden of establishing that each of her claims, in a claim in which Egyptian law applies, has a reasonable prospect of success, by relying on the ‘default rule’ or ‘presumption’ that foreign law is the same as English law and in the absence of any pleading of Egyptian law.

The Court concluded that the Court of Appeal had answered both questions correctly, dismissed the appeal, and allowed the case to proceed.

On the first question the Court held (Leggatt JSC dissenting) that in order for a claim to pass through the tort gateway it is necessary only for some significant damage, whether direct or indirect, to have been sustained within the jurisdiction of England and Wales. In doing so it rejected the Appellant’s contention that the provision ought to mirror the EU jurisdictional rules in place at the time of the accident; the English common law rules are quite distinct from the recast Brussels framework. Where, therefore, actionable harm has occurred within the jurisdiction, even where the tort has been completed abroad, the claim will pass through the tort gateway.

On the second question the Court was unanimous in dismissing the appeal. Lady Brownlie had pleaded her claim in Egyptian law, but had not evidenced the content of that law as it applied to her case. Nevertheless, the Court held that she could show that the claim had a reasonable prospect of success as a result of the ‘presumption of similarity’ – that is, the rule of English evidence that foreign law is presumed to be likely to be similar to English law unless the contrary is proven. This rule is distinct from the ‘default rule’ – that English law applies unless foreign law is pleaded – which was not available to Lady Brownlie because her claim had been pleaded in Egyptian law.

Comment

It has taken Lady Brownlie nine years to establish that she should be able to serve proceedings outside the jurisdiction on the correct Defendant, and if Four Seasons bring the same vigorous approach to defending the substantive claim, it is to be anticipated that a further decade or so of wrangling may yet be ahead of her. It is a poor advertisement for the civil justice system of England and Wales that a person seriously injured in an accident for which she cannot have been to blame should have to go through this process before the courts will even consider whether she has a claim which ought to proceed to trial. It is to be hoped, but it is not anticipated, that Lady Brownlie’s experience will lead to meaningful reform of how these ‘preliminary’ issues are dealt with.

However that may be, the decision will finally put to rest the distinction between direct and indirect damage contended for by the Appellant, albeit the claim has been proceeding for so long that the Civil Procedure Rules have long been amended to remove the distinction in any event, rendering this part of the judgment of historical rather than future significance.

Equally, the operation of the default rule and presumption of similarity are well established, but it is helpful to have their importance confirmed and reiterated by the Supreme Court. If a party wishes to assert that foreign law is different to English law, it is incumbent upon it to show why this might be so; it is not for the Claimant to plead and prove foreign law, but for the Defendant to take these points.

Ultimately the decision is very much as anticipated by practitioners and commentators; but it is a timely reminder that these evidential rules can be of crucial importance in either enabling a claim to be brought or causing it to fail. Those representing Lady Brownlie, however, will no doubt be hoping that the next round in the process will turn on more substantive matters of less interest to lawyers.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in many of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she has recently been invited to join the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists and the Admiralty Court Users’ Committee.

Written by or involving: Sarah Prager

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