Supreme Court decision handed down in landmark cross-border case

22 Oct 2021

The Supreme Court has this week handed down its decision in the case of Brownlie v FS Cairo (Nile Plaza) LLC 2021.

Following the UK’s exit from the EU there has been considerable doubt as to whether it was possible to bring a claim in the UK arising from an accident abroad. This case has clarified the position and will be of interest to potential Claimants and insurance companies alike.

In January 2010, Lady Brownlie and her husband were on holiday in Egypt. They were staying at the Four Seasons Hotel Cairo at Nile plaza. They went on a guided driving tour which Lady Brownlie had booked through the hotel. The vehicle they were travelling in crashed, killing her husband and seriously injuring Lady Brownlie. She issued court proceedings in England and one of the issues that arose was whether permission should have been given to serve court proceedings out of the jurisdiction thereby allowing the claim to proceed in England.

This key question in the case came down to interpreting the wording of what is known as the “Tort-Gateway” within Civil Procedure Rules Practice Direction 6B paragraph 3.1 (9) (a). The rule provides that it is necessary that “damage was sustained, or will be sustained, within the jurisdiction…” It is also necessary for a Claimant to show that the claim has a reasonable prospect of success and England and Wales is the appropriate forum in which to bring the claim. The Hotel argued that the words “damage was sustained… within the jurisdiction” meant that the initial or direct damage would have had to have been sustained in England and Wales to allow the case to proceed here. Lady Brownlie argued that it was sufficient that significant damage is sustained here (such as pain, suffering and loss of amenity which remained ongoing after her return to England). The Supreme Court favoured a wider interpretation.

This case provides a useful clarification of the position which had been far from clear post-Brexit. It is likely to mean that English persons injured in accidents abroad should be able to resume bringing claims here, although there may still be disagreement on a case by case basis as to whether there has been significant damage sustained in the jurisdiction particularly in less serious accident claims. There may also be ongoing issues relating to the enforcement of judgments abroad that being another issue left unresolved by the EU withdrawal agreement.

Author

Kelvin Farmaner

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