FS Cairo (Nile Plaza) LLC v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Reed,Lord Leggatt,Lord Briggs,Lord Burrows,Lord Lloyd-Jones
Judgment Date20 October 2021
Neutral Citation[2021] UKSC 45
FS Cairo (Nile Plaza) LLC
(Appellant)
and
Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC)
(Respondent)

[2021] UKSC 45

before

Lord Reed, President

Lord Lloyd-Jones

Lord Briggs

Lord Leggatt

Lord Burrows

Supreme Court

Michaelmas Term

On appeal from: [2020] EWCA Civ 996

Appellant

Marie Louise Kinsler QC

Howard Palmer QC

Alistair Mackenzie

Benjamin Phelps

(Instructed by Kennedys Law LLP (London))

Respondent

Sarah Crowther QC

Daniel Clarke

Joshua Cainer

(Instructed by Kingsley Napley LLP)

Heard on 13 and 14 January 2021

Lord Reed
1

This is a sad case with an unfortunate history. It arises out of a road accident in Egypt in January 2010 in which the claimant, Lady Brownlie, was seriously injured, her husband, Sir Ian Brownlie, was killed, Sir Ian's daughter Rebecca was also killed, and Rebecca's two children were injured.

2

The nature and history of the proceedings are fully explained in the judgments of Lord Lloyd-Jones and Lord Leggatt. In summary, the claimant seeks to recover damages from the operator of the hotel in Egypt which provided the excursion during which the accident occurred. She claims damages pursuant to Egyptian law, both in contract and in tort, first, in her own right, for her personal injuries; secondly, as executrix of Sir Ian's estate and on behalf of the estate and its heirs, for his wrongful death; and thirdly, for dependency for wrongful death.

3

The claim form was issued in December 2012. Proceedings followed in which the jurisdiction of the English courts was challenged. It ultimately emerged, during the hearing of an appeal to this court, that the claimant had named the wrong company in the Four Seasons group as the defendant, and that the operator of the hotel was FS Cairo (Nile Plaza) LLC, an Egyptian company. The High Court subsequently permitted the claimant to amend the claim form so as to substitute that company as the defendant, and to serve the amended claim form on the defendant in Egypt.

4

The present appeal raises two issues. The first is whether the claims in tort pass through the gateway in CPR PD 6B, paragraph 3.1(9), on which the claimant relies: that is to say, whether they satisfy the requirement for suing a defendant who is outside the territorial jurisdiction of the English courts that “damage was sustained … within the jurisdiction”. The second issue is whether the claims, both in contract and in tort, satisfy the requirement that they must have a reasonable prospect of success. That issue arises because it is common ground that the only claims which can be advanced are those available to the claimant under Egyptian law. The defendants maintain that the claimant must therefore adduce evidence of Egyptian law, whereas she maintains that she can rely on English law, on the basis that is applicable in the absence of satisfactory evidence of foreign law.

5

In relation to the first issue, concerning the tort gateway, Lord Briggs, Lord Burrows and I agree with the judgment of Lord Lloyd-Jones, rejecting the defendant's contentions. We respectfully differ from the view expressed by Lord Leggatt in his judgment, which dissents on that issue.

6

In relation to the second issue, concerning foreign law, the court is unanimous in rejecting the defendant's contentions. Lord Lloyd-Jones, Lord Briggs, Lord Burrows and I all agree with the judgment of Lord Leggatt in relation to that issue.

7

It follows that the court, by a majority of four to one, concludes that the appeal should be dismissed on both issues.

Lord Lloyd-Jones

(with whom Lord Reed, Lord Briggs and Lord Burrows agree)

Factual background
8

This action arises out of a tragic road traffic accident in Egypt in January 2010.

9

In March 2009, the claimant, Lady Brownlie, booked a holiday which included a stay at the Four Seasons Hotel Cairo at Nile Plaza (“the hotel”), commencing on 31 December 2009. Prior to departing from the United Kingdom on 21 December 2009, the claimant made a telephone call direct to the hotel to book an excursion she had seen advertised in a brochure, signed by the hotel concierge which contained the Four Seasons marque and logo, that she had picked up in the hotel during a previous stay there the previous year. She booked a limousine “safari” excursion to Al-Fayoum and certain other desert locations outside Cairo, for the claimant, her husband, Sir Ian Brownlie, his daughter Rebecca, and Rebecca's two children.

10

The tour took place on 3 January 2010. There was a guide and a driver. During the tour the vehicle broke down and a replacement car and driver arrived to complete the tour. Towards the end of the tour the vehicle in which the party was travelling left the road and crashed. Sir Ian and Rebecca were killed. The claimant and the two children were seriously injured.

The claims
11

The proceedings as originally constituted were issued in England on 19 December 2012. The claim form named Four Seasons Holdings Incorporated (“FSHI”), a company incorporated under the law of British Columbia, Canada, as first defendant. Nova Park SAE (“Nova Park”), an Egyptian company, was named as second defendant but, following further enquiries by the claimant's solicitors, Nova Park was not served with the claim form and took no part in the proceedings. The claimant claimed damages in contract and tort (a) for her own personal injury, (b) in her capacity as her late husband's executrix under the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”), and (c) for bereavement and loss of dependency under the Fatal Accidents Act 1976 (“the 1976 Act”) as Sir Ian's widow.

12

The particulars of claim in their original form included pleaded claims in contract and in tort against FSHI. The claimant maintained that the contract for the provision of the excursion into which she had entered was made by FSHI as principal or as agent for an undisclosed and unidentified principal with the result that it was liable to be sued as if it were the principal to the contract. The claimant alleged that the contract was subject to an implied term that the excursion be supplied with reasonable care and skill so as to enable the claimant and her husband to be reasonably safe. The particulars of claim alleged that the accident was caused by the negligence and/or breach of contract of FSHI, its employees, suppliers, sub-contractors, their agents and/or employees. Particulars were provided of the negligence of the driver of the vehicle and of FSHI, its employees, suppliers, sub-contractors, their agents and/or employees. It further alleged a failure to exercise reasonable care and skill with respect to the planning, organisation, management and operation of the excursion and a failure to exercise reasonable care and skill to ensure the reasonable safety of the claimant and her husband. Particulars were provided of the claimant's injury, losses and expenses. The claim form then set out the claims in respect of the death of Sir Ian on behalf of his estate and by the claimant as his dependant.

13

On 15 April 2013 Master Yoxall granted permission to serve the proceedings out of the jurisdiction on FSHI. So far as the claim was founded on contract the application was based on Practice Direction 6B, paragraph 3.1(6)(a) supplementing CPR Part 6, (“the contract … was made within the jurisdiction”). So far as it was founded on tort, it was based on Practice Direction 6B, paragraph 3.1(9)(a) (“damage was sustained … within the jurisdiction”).

14

On an application by FSHI under CPR Part 11 to challenge the jurisdiction of the English courts, Master Cook made an order dated 31 July 2013 which set aside the order of Master Yoxall and set aside the claim form and service of it on FSHI.

15

On the claimant's appeal against the order of Master Cook, Tugendhat J allowed the appeal and, by order dated 27 February 2014, set aside the order of Master Cook, restored the order of Master Yoxall and declared that the court had jurisdiction to try the claims: [2014] EWHC 273 (QB).

16

On FSHI's appeal against the order of Tugendhat J and by order dated 6 July 2015, the Court of Appeal (Arden, Bean and King LJJ) affirmed the decision of Tugendhat J, save that it held that the court did not have jurisdiction in respect of the claimant's tort claims for personal injury or pursuant to the Law Reform (Miscellaneous Provisions) Act 1934: [2015] EWCA Civ 665; [2016] 1 WLR 1814.

17

FSHI was granted permission to appeal by the Supreme Court by order dated 14 January 2016. The Supreme Court, by order dated 21 June 2016, also granted the claimant permission to cross-appeal on the issues of jurisdiction to try the tort claims for personal injury and pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. The Supreme Court (Lady Hale, Lord Wilson, Lord Sumption, Lord Hughes and Lord Clarke) heard the appeal on 9 and 10 May 2017 and 20 July 2017.

18

During the hearing before the Supreme Court it emerged that FSHI was a non-trading holding company which neither owned nor operated the hotel. The Supreme Court, in its judgments handed down on 19 December 2017, (“ Brownlie I”) allowed FSHI's appeal, holding that the evidence showed that there was no realistic prospect that the claimant would be able to establish at trial that she had contracted with FSHI or that FSHI was liable in negligence, and that therefore the courts of England and Wales had no jurisdiction to try any of the claims against FSHI. The Supreme Court granted the claimant permission to apply to correct the name of the defendant, to substitute or to add a party to the proceedings, and remitted ancillary matters to the High Court. In the judgments handed down on 19 December 2017, the members of the Supreme Court expressed differing obiter views on the meaning of “damage” in Practice Direction 6B, paragraph 3.1(9)(a): [2017] UKSC 80; [2018] 1 WLR...

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