Can English courts assert jurisdiction over claimants injured abroad on the basis that they continued to suffer harm upon their return? Yes, according to the recent decision of the United Kingdom Supreme Court [‘UKSC’] in FS Cairo (Nile Plaza) LLC v Lady Brownlie, [2021] UKSC 45. The UKSC endorsed a broad interpretation of ‘damage sustained within England’ for the purposes of establishing jurisdiction, diverging from the approach taken in Canada under Club Resorts Ltd v Van Breda, 2012 SCC 17. The judgement further lays out under what circumstances English law will be applied to proceedings involving foreign parties.

Background and Issues

The claimant, Lady Brownlie, was on a desert road excursion in Egypt with her family when the vehicle drove off-road and crashed. Lady Brownlie currently seeks recovery in English courts in both tort and contract from the Four Seasons Hotel Cairo at Nile Plaza [‘the Hotel’], which had been involved in advertising and organizing the excursion.

A long, 10 year fight over jurisdiction made its way to the UKSC for a second time, where it was held that England has jurisdiction over Lady Brownlie’s claim. Two issues were addressed by the Court in rendering its decision:^[1]

1. Does ‘damage sustained within the jurisdiction’ refer to direct initial harm suffered, or does it extend to all secondary effects consequent upon that initial harm?
2. In determining whether there is a serious issue to be tried, can a claimant rely on application of English law over Egyptian law?

The Decision

‘Damage sustained’ is given a wide meaning

The central fight between the parties was how direct a claimant’s ‘damage’ needs to be before jurisdiction could be established. The defendant argued that ‘damage sustained’ refers only to the initial or direct harm suffered by a claimant as a result of a wrong. On the Hotel’s theory, Lady Brownlie’s ‘damage’ was sustained in Egypt, where the physical injury and death occurred as a direct result of the accident.^[2] The claimant countered that this was too narrow an interpretation of ‘damage’. Her pain, suffering, and loss of amenity were not sustained at a single point in time, and rather extended to the continuing harm suffered thereafter on her return to England.^[3]

The majority agreed with the claimant and grounded jurisdiction on the basis that the ‘damage’ was sustained within England. Lord Lloyd-Jones, writing for the majority, supported a broad interpretation of ‘damage’ to include any actionable harm, direct or indirect, caused by the wrongful act alleged.^[4] In Lady Brownlie’s case, her damage will be with her wherever she is. Her pain, suffering, and physical injury was suffered sequentially, first in Egypt and then in England where she returned following the accident.^[5]

The Foreign Law Issue

Lady Brownlie’s claim in both tort and contract are grounded on Egyptian law. The Hotel argued that, despite this, the claimant failed to adduce sufficient evidence of the content of Egyptian law. As a result, there is no serious issue to be tried and therefore English courts lacked jurisdiction. Lady Brownlie’s countered that, in the absence of any evidence of Egyptian law from either party, the court could apply English law by default.^[6]

Lord Leggatt, writing for a unanimous court, held there exists a ‘presumption of similarity’ arising when foreign law applies but its contents have not been proven. Absent evidence to the contrary, a court will presume the foreign law to be similar in content to English law.^[7] The presumption is only justified where it is reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matters in issue.^[8] Lord Leggatt went on to apply the presumption, and held it was reasonable to assume that any system of law would impose an obligation on a hotel operator to ensure a customer’s safety during a trip organized or provided for by the hotel.^[9]

Implication

This decision may greatly expand the jurisdiction and reach of English courts over foreign litigants, particularly in the realm of personal injury or wrongful death. According to the majority, those who sustain injuries overseas continue to experience ‘damage’ upon their return. Although this might be appropriate and sufficient basis to ground jurisdiction in some circumstances, the Court’s ruling does not provide guidance as to where the line should be drawn. Would a fracture, or even a sprain, sustained during vacation and necessitating recovery time upon return be sufficient to ground jurisdiction?

Lord Leggatt, who dissented on this one issue, expressed concern with the majority’s broad approach to ‘damage sustained’. If this interpretation is correct, a claimant could artificially create a link with England which satisfies the requirements for suing a foreign defendant in English courts by, for instance, travelling to England for medical treatment after the event giving rise to the damage has occurred.^[10] The Supreme Court of Canada voiced this very same reservation in Club Resorts, where Justice LeBel indicated that ‘damage sustained’ was not a strong indicator on which to establish a real and substantial connection between the tort and the forum:

The problem with accepting unreservedly that if damage is sustained at a particular place, the claim presumptively falls within the jurisdiction of the courts of the place, is that this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one.^[11]

Lord Lloyd-Jones attempted to circumvent this concern by relying on forum non conveniens test as a ‘safety valve’, preventing defendants from being dragged into England where there is no ‘real or substantial’ connection to the jurisdiction.^[12] However, forum non conveniens is a discretionary test that is not well suited for assessing the existence of a ‘real or substantial’ connection. As indicated in Lord Leggatt’s dissenting judgement, the purpose of the doctrine is to determine whether England is the suitable forum. The exercise is forward-looking, focusing on how proceedings will develop rather than assessing the claim’s nature and history. For instance, a court may consider what is practical for the parties involved, or where witnesses and documentary evidence is located.^[13] This is also the current approach found in Canada under Club Resorts, where a court must decide the presence of jurisdiction first (on the basis of ‘real and substantial’ connection) before determining whether to exercise its discretion to take jurisdiction pursuant to forum non conveniens.^[14]

The lack of guidance from the UKSC and discretionary nature of forum non conveniens could increase unpredictability and unfairness in jurisdictional battles.^[15] The result may very well be a great increased in the reach of English courts around the world.

Case Information

FS Cairo (Nile Plaza) LLC (Appellant) v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent), [2021] UKSC 45, 3 WLR 1011.

Date of Decision: October 20, 2021

____________________________________________________ 

[1] FS Cairo (Nile Plaza) LLC v Lady Brownlie, [2021] UKSC 45 at para 27 [‘FS Cairo’].

[2] Ibid at para 33.

[3] Ibid at para 34.

[4] Ibid at para 81.

[5] Ibid at paras 76 and 83.

[6] Ibid at paras 102-106.

[7] Ibid at para 119.

[8] Ibid at para 126.

[9] Ibid at para 157.

[10] Ibid at para 194.

[11] Club Resorts Ltd v Van Breda, 2012 SCC 17 at para 89 [‘Club Resorts’].

[12] FS Cairo, supra note 1 at paras 47, 64, 77-80, and 82.

[13] Ibid at 195-199.

[14] Club resorts, supra note 11 at paras 101-112.

[15] FS Cairo, supra note 1 at para 200.