Supreme Court judgment welcome news for tourists injured abroad and lawyers in a post-Brexit world

by Demetrius Danas, an international serious injury lawyer at Irwin Mitchell

After what seemed like an interminable delay, but in reality was a period of just over nine months from the hearing, the UK Supreme Court has finally delivered its Judgment in the case of FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent) [2021] UKSC 45.

The case was brought by Lady Brownlie following a road accident whilst she and her husband, Sir Ian Brownlie QC, were on holiday in Egypt. They stayed at the Four Seasons Hotel Cairo at Nile Plaza and during their trip, they went on a guided tour which Lady Brownlie had previously booked through the hotel. 

The vehicle they were passengers in during the guided tour crashed, killing Sir Ian and seriously injuring Lady Brownlie. Lady Brownlie issued proceedings against the hotel, in England and the question of whether she was entitled to bring her case in England has been the subject of protracted litigation ending up with a final appeal by the hotel to the UKSC.

Lawyers breathing sigh of relief following judgment

Claimant lawyers will now be breathing a sigh of relief as the UKSC held that the courts of England and Wales have jurisdiction to hear the case as it falls within a jurisdictional gateway under CPR Practice Direction 6B.

Brexit's seismic change to international injury cases

The end of the Brexit transition period on 31 December, 2020, brought about a seismic change in the UK’s jurisdictional rules as far as accidents in the EU / EFTA countries are concerned. Under the pre-Brexit Brussels regime, UK residents who were injured in the EU could automatically bring their cases directly against the responsible party’s liability insurer, in their own home court, provided such direct action was available. 

Consequently, for the past 12 or so years, UK residents injured in road traffic cases in the EU / EFTA countries have routinely brought their cases against the foreign insurer in the domestic courts. However, Brexit saw an end to this pro-claimant regime and the UK’s attempt to continue with jurisdictional rules along the same vein by joining the Lugano Convention has thus far been thwarted by the EU Commission.

Post Brexit, jurisdictional rules for accidents in the EU are now based on the common law rules that apply to the rest of the world. 

The claimant must apply to the High Court for permission to serve the claim form on a defendant based abroad and in order to do that, the claimant must satisfy several pre-conditions, one of which is that the claim must fall within a relevant jurisdictional gateway. 

The tort gateway under PD 6B Paragraph 3.1 (9) (a) is the most likely route through which claimants would hope to be able to pursue their claim arising out of road traffic accidents abroad, in the UK. This would be on the basis that damage “was sustained within the jurisdiction”. 

Put briefly, the question the UKSC was asked is whether consequential losses suffered in the claimant’s country are damage sustained within the jurisdiction. The UKSC has confirmed that such losses are indeed damage sustained within the jurisdiction and that therefore, the tort gateway is triggered.

More legal issues to be dealt with following Brexit

Whilst this judgment is of course welcome as far as claimants and their lawyers are concerned, the position is not as helpful as the pre-Brexit position. Jurisdiction now remains discretionary and will need to be considered on a case by case basis, rather than being based on predictable rules. 

In addition, this decision relates to jurisdiction, whereas the Brussels regime covered both jurisdiction and enforcement of judgments. Enforcement of a UK judgment abroad in the post-Brexit landscape is the next issue with which claimant private international lawyers will have to grapple.

Find out more about Irwin Mitchell's expertise in supporting people following accidents abroad at our dedicated international serious injury section.