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On appeal from: [2015] EWCA Civ 665.

Sir Ian Brownlie died in a car ­accident while on holiday with his family in Egypt. His wife, Lady Brownlie was also injured. She brought proceedings seeking: (i) damages for her own personal injuries, (ii) damages under the Law Reform (Miscellaneous Provisions) Act 1934 as Sir Ian’s executrix, and (iii) damages for her bereavement and loss of dependency under the Fatal Accidents Act 1976.

Held: before permission can be given for service of a claim outside the jurisdiction, it was necessary for the claimant to establish that: (i) the case falls within at least one of the jurisdictional gateways in CPR, PD 6B, para 3.1, (ii) the claim must have a reasonable prospect of success; and (iii) England and Wales must be the proper place in which to bring the claim. To satisfy (i), there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.

Inter alia, with regards to those aspects of the claim grounded in contract, there was no reasonable prospect of success. Four Seasons clarified that at the material times the Cairo hotel had been owned by a company unrelated to them and operated by their Egyptian subsidiary.

The claim under the Fatal Accidents Act 1976 had no prospect of success because the 1976 Act has no application to a tort that is not governed by English law. The driver’s alleged negligence was governed by the law of Egypt.

However, the tort jurisdictional gateway test under the CPR, PD 6B, para 3.1(9)(a), which requires that ‘damage’ be sustained within the jurisdiction, was satisfied insofar as the claim sought damages for personal injury to Lady Brownlie and, as his executrix, to her late husband. There is a consistent line of first instance decisions permitting claims in tort to be brought in England and Wales if damage is suffered here a result of injuries inflicted abroad.

It was questionable whether claims in which only a tenuous amount of damage was suffered in England and Wales will satisfy the separate test of whether that is the proper place in which to bring the claim.

For judgment, please download: [2017] UKSC 80
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (9 May 2017 morning session) (9 May 2017 afternoon session) (10 May 2017 morning session) (20 Jul 2017 morning session) (20 Jul 2017 afternoon session)