Court of Appeal decision on jurisdiction: the tort gateway test and presumption of law
FS Cairo (Nile Plaza) LLC v Brownlie [29.07.20]
In a decision handed down on 29 July 2020 the Court of Appeal ruled on the continuing personal injury and dependency claim by Lady Christine Brownlie against Four Seasons entities. The Court decided on two important areas relating to accidents abroad which could have real significance in the number of cases which English courts would need to deal with in the future.
We refer to our previous article which provides a summary of the facts and earlier court decisions.
Lady Brownlie, in making her claim has sought to recover: i) damages for her own personal injury, (ii) damages on behalf of her late husband’s estate and (iii) damages for bereavement and loss of dependency. Originally Lady Brownlie brought her claim under English law pleading breach of contract and in tort although it is now agreed by both parties that Egyptian law should apply to the claim.
The Court of Appeal hearing in May this year was not the first time the Upper Courts have considered the jurisdictional issues raised by this claim. In 2017 the Supreme Court decided that Lady Brownlie had brought her claim against the wrong defendant and dismissed that claim against the then defendant. The Supreme Court granted permission to Lady Brownlie to substitute the correct defendant and to amend her particulars of claim. In giving its decision the Supreme Court also made obiter comments on the tort gateway test (which requires that “damage was sustained….within the jurisdiction”) and the differing opinions of the Supreme Court on this issue were considered by the Court of Appeal in this decision.
Tort gateway test
The Court of Appeal decided by a two to one majority that following an accident abroad that indirect losses suffered by a claimant whilst in England (i.e. a loss of income or loss of dependency) is sufficient to pass the jurisdictional gateway requirements as set out in the Civil Procedure Rules (paragraph 3.1 of the Civil Procedure Rules Practice Direction 6B).
Presumption of law/merits
The Appeal Court also decided that the claimant could discharge the burden of establishing reasonable prospects of relying on the “presumption” that foreign law is the same as English law. The majority concluded that the failure on the claimant’s part to plead her claim in detail by reference to Egyptian law did not undermine her case in proving she had a reasonable prospect of success.
The Court of Appeal decision means that it will now be easier for claimants who have suffered accidents outside of the European Union to satisfy the tort gateway test allowing English courts to claim jurisdiction. At the end of the transition period under the European Union (Withdrawal Agreement) Act 2020 (31st December 2020), the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 will come into effect. From that time, if there is no other change, all claims in tort will be governed by CPR 6BPD 9.1(a).
The other impact of the Appeal Court’s decision is that it will now mean that defendants may not immediately know the full nature and extent of the claims which are being made against them at the pleadings stage of the claim.
The Court of Appeal has granted permission to the defendants to appeal their decision to the Supreme Court on an expedited basis.
Since publication of this article, the Supreme Court has given an expedited hearing date for 13 and 14 January 2021.