Court Of Appeal Provides Clarification In Respect Of The Application Of The Tort Jurisdictional Gateway

FS Cairo (Nile Plaza) LLC v Brownlie (widow and executrix of the estate of Professor Sir Ian Brownlie, CBE, QC) [2020] EWCA Civ 996

This case provides some helpful clarification for practitioners making an application to serve outside of the jurisdiction, particularly for those intending to rely on the tort gateway present within CPR PD 6B, para 3.1(9)(a).

Background

In 2010, Sir Ian Brownlie QC and his wife (Claimant) stayed at the Four Seasons Hotel in Egypt. The Claimant booked an excursion with the hotel which involved a hired chauffeur driven car.

The excursion took place on 3rd January and unfortunately ended in a serious accident, in which Sir Ian Brownlie and his daughter Rebecca were both killed. The Claimant was seriously injured as a result of the accident.

In 2012, the Claimant brought a claim in contract, tort and vicarious liability.

The difficulty for the Claimant was that she would need the Court’s permission to serve the claim outside of the jurisdiction given that the Defendant was based in Canada.

Summary of Proceedings to date

Permission to serve the proceedings outside of the jurisdiction was granted by the Court on 15th April 2013.

The Defendant sought to appeal this decision arguing that the English Court had no jurisdiction to try this claim. The Defendant was successful in this application.

The Claimant appealed this decision to the Court of Appeal. The Court of Appeal allowed the appeal in part, permitting the Claimant to serve her claim outside of the jurisdiction in relation to the contract claim but not in respect of her other claims in tort.

The next difficulty arose whereby it was discovered that the Defendant had been identified incorrectly within the proceedings. The Claimant had to make an application to the Court for permission to amend the proceedings and for permission to serve outside of the jurisdiction on the newly identified Defendant who was based in Egypt.

Nicol J decided that the claim had a real prospect of success and that two jurisdictional gateways applied and therefore the Claimant could serve outside of the jurisdiction.

The Defendant appealed against the decision of Nicol J, which has now been decided upon by the Court of Appeal.

What did the Court decide?

The Court of Appeal agreed with the appealed decision of Nicol J. Namely, that non-EU regulation cases in which the tort gateway applied should be construed in line with Lady Hale’s view in Four Seasons Holdings Inc v Brownlie [2017] UKSC 80, para [50]. Namely, significant damage whether direct or indirect is enough to establish jurisdiction in a multi-state case.

As a result, the Claimant was given permission to serve outside of the jurisdiction under the tort gateway.

Comment

This judgment provides clarification for practitioners in respect of the application of the tort jurisdictional gateway. It was clarified that when considering this gateway in non-EU regulation cases, it is only necessary to show that “some significant damage” occurred in England, whether this damage was direct or indirect.