When Accidents Happen Abroad, Will The England and Wales Courts Hear It

When Accidents Happen Abroad, Will The England and Wales Courts Hear It?

If you are involved in an accident abroad in another jurisdiction, will a domestic court hear the case and what factors will court consider?

In the recent Supreme Court case of FS Cairo (Nile Plaza) LLC v Lady Brownlie the Claimant, Lady Brownlie, had been involved in a fatal accident in Egypt during an excursion planned by an Egyptian company which unfortunately killed some of her close relatives and she sustained significant injuries.

Lady Brownlie claimed that as a large proportion of damage happened within the England and Wales jurisdiction after her return to the UK which was arguably classified as ‘damage sustained within the jurisdiction’ and meant that the English courts could hear it.

So Why Did the Claimant Want To Serve The Claim Outside The Jurisdiction?

Lady Brownlie submitted that Egyptian law applied, however she applied for permission to submit the relevant claim form outside the jurisdiction.

What Do The Judges Take Into Account In Similar Tort Cases?

In assessing whether similar cases could be heard in England and Wales through the ‘tort gateway’, judges are taking into account:

  • the accident and a large proportion of the resulting damage occurring outside the jurisdiction
  • whether damage was sustained in the accident which was actionable direct or indirect harm
  • which could be defined as pain, suffering and loss of amenity
  • the direct financial impact of the fatal accident on the claimant’s spouse and
  • which was attributable to the wrongful act of the Defendant.

Do You Know Your Presumption Of Similarity From Your Default Rule?

Lord Leggatt unpacked the definition of the ‘default rule’ which applies the laws of England and Wales to every claim submitted, regardless of location unless the parties want the law from another jurisdiction to apply. In the alternative, the presumption of similarity assumes that another jurisdiction’s law is comparable to and moves in lockstep with English law in some particular legal areas.

The Presumption of Similarity Guarantees Plain Sailing For My Client, Right?

The reader should not jump to conclusions too hastily. If it becomes advantageous to change part of the case, the party seeking to do so must be advised that they will be obliged to apply for the court’s consent.

What Do The Rules Say About This?

In the case Lord Lloyd-Jones referred to rule 3.37(3) of the Civil Procedure Rules to answer the question which states that it is appropriate to submit a claim in the England and Wales jurisdiction in circumstances where a case has a limited link to the jurisdiction of England and Wales. In this scenario Lord Lloyd described CPR Rule 3.37(3) as effectively operating as a ‘safety valve’.Thomas Kelly from Norton Rose Fulbright commented that the result of this case potentially makes it simpler for cases involving accidents which had taken place outside of the England and Wales jurisdiction to be submitted in England.

Lawyers should be advising their clients that judges will only apply the presumption of similarity in cases involving contract and tort cases under common law and there is a lower probability of it being applied to more complicated legal matters involving taxation. Clients should be made aware that if pleading the law of another jurisdiction they will be unable to rely on the default rule.

The Supreme Court also emphasised the importance of case management in contract and tort cases. To claim under another jurisdiction’s law the reasonably appropriate moment appears to be during the case management part of the case under Rule 3 of the Civil Procedure Rules.

The Legists Content Team

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THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45 - FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45 (20 October 2021) (bailii.org)

[2] Kelly, Thomas – The Supreme Court clarifies the tort gateway for service out – NortonRoseFulbright - 7 March 2022 - The Supreme Court clarifies the tort gateway for service out | Inside Disputes | Global law firm | Norton Rose Fulbright

[3] Boyne, C et al – Supreme Court clarifies the Scope of the Common Law Tort Gateway for Jurisdiction – Debovoise & Plimpton - 3 February 2022 - Supreme Court Clarifies the Scope of the Common Law Tort Gateway for Jurisdiction | 02 | 2022 | Publications | Insights & Publications | Debevoise & Plimpton LLP

[4] Given, D et al – RPC – 20.04.2022 - Opening the gateway: Supreme Court favours wide interpretation for service out of the jurisdiction and clarifies rules of pleading foreign law

[5] Rule 6.37(3) of the Civil Procedure Rules

[6]Practice Direction 6B, paragraph 3.1(9) of the Civil Procedure Rules

[7] Practice Direction 6B, paragraph 3.1(9)(a) of the Civil Procedure Rules

[8] Rule 3 of the Civil Procedure Rules

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