The recent Supreme Court decision in FS Cairo (Nile Plaza) LLC v Brownlie has prompted some reports that British tourists who are injured abroad will be permitted to sue through the UK courts, after a woman succeeded in her case against a hotel chain to establish jurisdiction. However, it is important to note that the appeal was concerned with the domestic rules of England and Wales, although it may have implications for Scotland in the future.
The background to the decision is that a family had booked a chauffeur-driven tour through their hotel in Cairo. During their excursion, a road traffic accident occurred, resulting in the deaths of some members of the family and injury to others. The claimant, Lady Brownlie, seeks damages from the operator of the hotel in Egypt.
In the court action, she claims damages under Egyptian law, firstly, for her own personal injuries, secondly, as executrix of her late husband for his wrongful death, and thirdly, as a relative with a dependency claim. This is a broadly equivalent type of claim to those often pursued in Scotland following similar accidents here. In Scotland, claims for damages following a fatality are often referred to as fatal damages claims and may involve not only a claim on behalf of the deceased’s estate but also claims by qualifying family members.
The recent Supreme Court decision dealt with two issues. The first issue, which has been widely reported, was whether the claimant satisfied a requirement for suing a defendant outside the territorial jurisdiction of the English courts, that damage was sustained within the jurisdiction. A second issue, less widely reported, was whether the claim satisfied a further requirement under English law that it must have a reasonable prospect of success.
Essentially, the first issue turned on interpretation of English rules which allow claimants to serve a claim form out of the jurisdiction with the permission of the court, in certain circumstances. The particular focus was on interpreting what is meant by “damage…sustained…within the jurisdiction”.
The defendant’s position in the action was that, in the specific context of a road traffic accident, causing personal injury or death resulting from personal injury, the damage is that sustained by the injured person at the time and place of the accident, when the injured person is initially harmed. However, the claimant argued that what was required as a “gateway” to suing in England was that some significant damage is sustained in England. Damage in the form of pain, suffering and loss of amenity resulting from personal injury, it was argued, is not just sustained at a single point in time when an injury is first suffered but extends to damage which continues to be suffered.
The Supreme Court was persuaded, on a majority view, that the pain, suffering and physical injury were suffered sequentially, first in Egypt and then in England. Lady Brownlie’s case may now be heard in England, as the court accepted that the damage she suffered continued to affect her upon her return to England.
It has been reported that the general principle now is that if you are a UK national and you go abroad and are injured while on holiday or killed and your losses – financial and physical – occur in the UK, then the jurisdictional gateway is now open for you. However, this judgement applies south of the border and, even if the gateway there is more open, it seems clear that the courts in England and Wales will still have to determine, case by case, whether it is appropriate to hear a case in that jurisdiction.
In Scotland, the starting point for establishing jurisdiction is usually that the person or organisation to be sued is domiciled in Scotland although, in these types of fatal damages or injury claims, it is also normal to sue in Scotland simply on the basis that this is where the harmful event happened. It will be interesting to see if the approach to accidents abroad in Scotland now broadens too, perhaps also by looking at harm as being something that is not just suffered at a single point in time.
In the meantime, claimants should be aware that there has already been scope to pursue claims in Scotland arising from accidents abroad for some years, in particular circumstances. Please contact us for more information if you have been involved in an accident abroad and wish to make a claim. Our Legal Director, Ken Lauder, is highly experienced in dealing with fatal damages and personal injury claims. He and other members of our Litigation team will work with you to achieve the best outcome for you if you have a claim.
If you would like further information on the topic discussed in this blog, please contact Ken Lauder by email: firstname.lastname@example.org or by phone: 0131 516 5365 / 07841 920 101. You can also view Ken’s profile by clicking here.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.