FS Cairo (Nile Plaza) LLC v Lady Brownlie

I will not repeat in any detail the tragic facts or sorry history of these proceedings, which have been summarised by Lord Lloyd-Jones, but will address with only brief introduction the two legal issues of general importance raised on this appeal. The first is whether, in order to show that her claims have a reasonable prospect of success, the claimant needed to adduce evidence of Egyptian law - which is agreed to be the law applicable to her claims - or whether she could rely on English law for that purpose. The second issue, on which I have the misfortune to differ from Lord Lloyd-Jones, is whether her claims in tort satisfy the requirement for suing a defendant who is outside the territorial jurisdiction of the English courts that “damage was sustained … within the jurisdiction”.

As Lord Lloyd-Jones has described, the claims arise out of a road accident in Egypt on 3 January 2010 in which the claimant, Lady Brownlie, was seriously injured and her husband, Sir Ian Brownlie, was killed. (Sir Ian Brownlie’s daughter was also killed and her two children injured in the accident but no claims are made on their behalf in these proceedings). The fatal accident occurred during a limousine “safari” excursion provided by the Four Seasons Hotel Cairo at Nile Plaza where they were staying on a short holiday in Egypt. The claimant had booked the excursion in a telephone call made to the hotel before leaving England.

The claimant is seeking to sue the operator of the hotel in the English courts. Her first attempt foundered when it ultimately became clear on an appeal to the Supreme 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 (“FS Cairo”), an Egyptian company. There has been no appeal from the subsequent decision of Nicol J to allow the claim form to be amended to substitute FS Cairo as the defendant; but the judge’s decision to permit service of the claim form on FS Cairo in Egypt has brought this claim to the Supreme Court on appeal for a second time.

Lady Brownlie’s claims are made in three different capacities: (i) in her own right, for her own personal injuries; (ii) as executrix on behalf of her husband’s estate, for his wrongful death; and (iii) as his widow, for bereavement damages and dependency. Her claims in all three capacities are pleaded as claims for breach of contract and in the tort of negligence.

The contractual claims are based on what is said to be an implied term of the contract to provide the excursion that the defendant would exercise reasonable care and skill to ensure that the claimant and her husband were reasonably safe. The matters relied on to establish a breach of this duty include supplying a vehicle with defective tyres and no seat belts and failing to ensure that the driver was experienced, properly trained and suitable.

The same matters are relied on to support a claim for breach of a duty of care said to have been owed by the defendant to the claimant and her husband in tort to ensure their reasonable safety during the excursion. In addition, a claim in tort is made on the separate basis that the driver of the vehicle was negligent in driving too fast and losing control of the vehicle and that the defendant is vicariously liable for the driver’s acts and omissions. I will refer to these two different claims in tort as, respectively, the “direct liability claim” and the “vicarious liability claim”.

Which system of law governs a claim for breach of contract brought in England and Wales is determined by the rules of private international law contained in Regulation (EC) 593/2008 (“the Rome I Regulation”). Where, as in this case, the law applicable to the contract has not been chosen by the parties, under article 4(1)(b) of the Rome I Regulation a contract for the provision of services is governed by the law of the country where the service provider has its habitual residence, which, in the case of a company, is the place of its central administration: see article 19(1). The contract by which the defendant agreed to provide the excursion booked by the claimant was a contract for the provision of services and the defendant has its central administration in Egypt. The contract is therefore governed by Egyptian law.

Which system of law applies to a claim in tort is determined by the rules of private international law contained in Regulation (EC) 864/2007 (“the Rome II Regulation”). Pursuant to article 4(1) of the Rome II Regulation, the applicable law is:

It is accordingly common ground that the law applicable to all the claims asserted in these proceedings is the law of Egypt.

One of the requirements, reflected in CPR rule 6.37(1)(b), which a claimant must satisfy before permission may be granted to serve a claim form on a defendant outside the territorial jurisdiction of the court is to show that the claim has a reasonable prospect of success. The test has also been formulated in the case law as a “real prospect of success” or a “serious issue to be tried”. There is no practical difference between these formulations and the test is the same as that for resisting summary judgment: see Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd[2011] UKPC 7; [2012] 1 WLR 1804, paras 71, 82; VTB Capital plc v Nutritek International Corpn[2013] UKSC 5; [2013] 2 AC 337, para 164; Vedanta Resources Plc v Lungowe[2019] UKSC 20; [2020] AC 1045, para 42. The rationale for the requirement is that the court should not subject a foreign litigant to the inconvenience and expense of defending proceedings in this country which are liable to be summarily dismissed.

Where - as in the present proceedings - the claim form which the claimant seeks permission to serve out of the jurisdiction is accompanied by particulars of claim, this court has recently emphasised that the analytical focus should be on the particulars of claim and whether, on the basis that the facts there alleged are true, the claim asserted has a real prospect of success: see Okpabi v Royal Dutch Shell plc[2021] UKSC 3; [2021] 1 WLR 1294, para 22. Foreign law, when relied on, is a matter which must be pleaded so that the defendant knows the case it has to meet: see eg Ascherberg, Hopwood & Crew Ltd v Casa Musicale Sonzogno Di Pietro Ostali SNC [1971] 1 WLR 1128. However, although the amended claim form and particulars of claim describe the relief claimed in these proceedings as “damages pursuant to Egyptian law”, they do not specify any rule or provision of Egyptian law on which the claimant intends to rely.

In connection with the claimant’s applications for permission to amend the claim form and to serve it on FS Cairo in Egypt, the parties nonetheless, in accordance with a case management order made by consent, served written expert evidence of Egyptian law.

At the hearing of the applications, FS Cairo accepted that the expert evidence of Egyptian law adduced by the claimant was sufficient to show that she has a reasonable prospect of succeeding in her vicarious liability claim in tort in all three capacities in which she is suing. However, it argued that she had adduced no evidence of Egyptian law to support her direct liability claim in tort or claim for breach of contract, with the result that the claimant had failed to show that either of those claims has a reasonable prospect of success.

In response, the claimant relied on the proposition stated as rule 25(2) in Dicey, Morris and Collins,The Conflict of Laws, 15th ed (2012), para 9R-001, that, in a case to which foreign law applies, “in the absence of satisfactory evidence of foreign law, the court will apply English law”.

The judge accepted that, in so far as evidence of Egyptian law was lacking, the claimant was entitled to rely on English law and, on that basis, had satisfied the requirement of showing that her contract claim and direct liability claim in tort have reasonable prospects of success. The Court of Appeal by a majority (Underhill and McCombe LJJ, with Arnold LJ dissenting) upheld this decision.

On this appeal the defendant argues that, in a case where foreign law applies pursuant to mandatory choice of law rules, it is wrong in principle to apply English law or any presumption that the applicable foreign law is similar to English law. To do so would unjustifiably reverse the burden of proof. At all events, there is no justification for applying English law or any such presumption where, as in the present case, the claimant has asserted that foreign law is applicable and has adduced evidence of that foreign law but there are gaps in the evidence.

The claimant’s response is that the rule stated in Dicey (quoted at para 103 above) is well established; that there is no exception relevant in this case; that Egyptian law has not been shown to differ from English law in any material respect; that it is not disputed that the contract claim and direct liability claim in tort have reasonable prospects of success if English law is applied; and that the courts below were therefore right to hold that all the pleaded claims satisfy the requirement for service out of the jurisdiction.

To resolve this dispute, it is first necessary to identify the basis and scope of the rule which allows domestic law to be applied in some cases even though, according to the relevant rules of private international law, the claim is governed by foreign law.

Historically, the rule on which the claimant relies has been expressed as a presumption that, in the absence of evidence to the contrary, foreign law is presumed to be the same as English law. For example, in Dynamit AG v Rio Tinto Co Ltd[1918] AC 260, 295, Lord Dunedin said:

This was how the law was originally stated in AV Dicey’s influential work, A Digest of the Law of England with Reference to the Conflict of Laws, 1st ed (1896). In the first edition of Dicey, the presumption was referred to only in a review of American case law, which contained the statement: “in the absence of proof of the foreign law, it will be presumed to be the same as that of the forum”. In the fourth edition, published in 1927, the statement was elevated to one of Dicey’s rules of English law concerning the conflict of laws (rule 204) and expanded to read, at pp 805-806:

It is unclear what prompted the change made in the seventh edition of Dicey. However, the commentary on the rule in the current edition, after referring to cases where it has been doubted whether the court was entitled to presume that the foreign law was the same as that of the forum, says that “[i]n view of these difficulties, it is better to abandon the terminology of presumption and simply to say that where foreign law is not proved, the court applies English law”: see Dicey, Morris and Collins,The Conflict of Laws, 15th ed (2012), para 9-025. After discussion of case law, the conclusion is drawn at para 9-029 that:

This last statement is ambiguous as to whether the rule involves “the default application of a rule of English law” or, after all, a presumption that, in the absence of sufficient proof, “foreign law will be taken to be the same as English law”. Such elision of the two concepts can also be seen in some judicial decisions. The potential for confusion is increased by the fact that the expression “default rule” is capable of being used - as it was by Underhill LJ in the Court of Appeal in the present case - to refer to a situation where “the court is applying the foreign law but using the default rule to establish its effect”: see [2020] EWCA Civ 996, para 171. On this usage the “default rule” is just another name for the presumption that foreign law is the same as English law.

For my part, I think it preferable in the interests of clarity not to treat the terms “presumption” and “default rule” as interchangeable and to recognise that there are two different rules which are conceptually quite distinct. So too are their respective rationales. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be. By contrast, the “default rule” (as I shall use that term) is not concerned with establishing the content of foreign law but treats English law as applicable in its own right where foreign law is not pleaded.

The obvious objection to the default rule is that, where the relevant rules of English private international law provide that the law applicable to an obligation is the law of another country, it is the duty of the court to apply that system of law and not English law to the obligation. The answer given to that objection by those who defend the default rule is that, in an adversarial system such as that in England and Wales, if a party does not rely on a particular rule of law even though it would be entitled to do so, it is not generally for the court to apply the rule of its own motion. The issues in proceedings are defined by the parties’ statements of case. Thus, it is for each party to choose whether to plead a case that a foreign system of law is applicable to the claim; but neither party is obliged to do so and, if neither party does, the court will apply its own law to the issues in dispute.

I think this justification for applying English domestic law by default is valid so far as it goes. Article 1(3) of each of the Rome I and Rome II Regulations provides that (with immaterial exceptions) the Regulation “shall not apply to evidence and procedure”. The rule that (with limited exceptions) the court is not obliged to decide a case in accordance with a rule of law on which neither party chooses to rely is a rule of English civil procedure. The Rome I and Rome II Regulations therefore do not seek to oust it. (If, which I doubt, the Court of Appeal in Belhaj v Straw[2014] EWCA Civ 1394; [2017] AC 964, para 155, intended to suggest otherwise, I agree with the reasons given by Andrew Baker J in Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA[2018] EWHC 2759 (Comm); [2019] 1 WLR 82, para 21, for regarding the suggestion as mistaken.) In accordance with this procedural rule, the English court is not obliged to apply the choice of law rules contained in the Rome I and Rome II Regulations if neither party chooses to assert in its statement of case that foreign law is applicable. That is so even if the case is one to which a foreign system of law would clearly have to be applied if either party chose to rely on that fact. It may also be said that in such a situation the parties are tacitly agreeing that English law should be applied to decide the case. There is no public policy which prevents this. Indeed, the freedom to agree after the event to submit a contractual or non-contractual obligation to a law of the parties’ choice different from the law previously or otherwise applicable is expressly affirmed by, respectively, article 3(2) of the Rome I Regulation and article 14(1)(a) of the Rome II Regulation.

Not uncommonly, actions are brought in the English courts in which the parties are content for the court to apply English law, even though it is apparent that foreign law would be applicable if either party chose to rely on it. A notable example is Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676, the leading case on the effect of a clause in a contract for the sale of goods which provides for the seller to retain title to the goods until payment is made. The contract terms in issue in that case were written in the Dutch language and expressly governed by Dutch law, but neither party pleaded Dutch law and the court accordingly applied English law to the contracts. Such an approach makes good practical sense where there is or is likely to be insufficient difference between the foreign law in question and English law to justify the inconvenience and cost of asserting and proving a difference.

The rationale for applying English law by default, however, depends upon neither party choosing to advance a case that foreign law is applicable. If either party pleads that under the relevant rules of English private international law foreign law is applicable to an obligation, and that case is well founded, it is the duty of the court to apply foreign law. To apply English domestic law in that situation would ex hypothesi be unlawful. In accordance with general principle, the burden is on the party who is making or defending a claim, as the case may be, to prove that it has a legally valid claim or defence. Where the law applicable to the claim or defence is a foreign system of law, this will require the party to show that it has a good claim or defence under that law.

An argument has been made by one of the leading scholars in this field, Professor Adrian Briggs, that, if a party who bears the burden of proving foreign law fails to prove its content, the court should apply English law instead. In The Conflict of Laws, 4th ed (2019), p 11, he writes:

That is the position in the present case. As mentioned, the only claims made in the amended claim form and particulars of claim are claims for damages “pursuant to Egyptian law”. There is accordingly no scope for applying English law by default. It follows that, if English law has any role to play, it can only be on the basis of a presumption that the content of the applicable foreign law is materially similar to the English law on the matter in question.

As already indicated, that is indeed the basis on which English courts (and courts in other common law jurisdictions) have historically applied domestic law in cases where foreign law is recognised to be applicable but the content of the foreign law has not been proved. Since this presumption is part of the law of evidence, it is also not affected by the Rome I and Rome II Regulations: see OPO v MLA[2014] EWCA Civ 1277; [2015] EMLR 4, para 108.

In recent years the presumption of similarity has been strongly criticised by some academic writers. A leading critic has been Professor Richard Fentiman, whose arguments in Foreign Law in English Courts: Pleading, Proof and Choice of Law (1998) are relied on by counsel for the defendant on this appeal. The defendant also referred to Adrian Briggs, The Conflict of Laws, 4th ed (2019), pp 7-11, and Anthony Gray, “Choice of Law: The Presumption in the Proof of Foreign Law” (2008) 31 UNSWLJ 136.

The crux of the criticisms made by these writers is that the presumption of similarity is a legal fiction which should have no place in modern law and that the presumption is unfair to defendants because its effect is to reverse the burden of proof. The thrust of Professor Fentiman’s arguments is well conveyed in the following passage:

These arguments, in my view, would have force if the presumption were inflexible and applied in circumstances where there is good reason to think that the applicable foreign law is different in a material respect from English law. However, that is not and has never been the effect of the presumption. The common law has never required unrealistic or unreasonable assumptions to be made about the content of foreign law. Where it applies, the presumption of similarity is justified by a combination of three factors.

First, while there are of course many differences between the laws of different countries, there are also often similarities. That is most obviously true where the laws have a common origin, as in the case of countries which apply the common law. While there is a natural tendency for the laws of such countries to diverge over time, that tendency is reduced by the respect which courts in common law jurisdictions afford to decisions of the courts of other common law countries as persuasive authority on the content of their own law. Even where the foreign system of law is a civil law system with its historical roots in Roman law, there is often good reason to expect that the foreign law will provide the same answer to a legal question, even if the result is reached by a different legal route. Such parallels have been enhanced where international conventions aimed at harmonisation of laws have been adopted, mainly in areas of commercial law. In Muduroglu Ltd v TC Ziraat Bankasi [1986] QB 1225, 1246, Mustill LJ observed that “in so many practical respects there is insufficient difference between the commercial laws of one trading nation and another to make it worth while asserting and proving a difference”. This same insufficiency of difference will often make it reasonable to start from an assumption that the applicable foreign law is likely to be materially similar to English law.

The requirement of materiality is the second factor which it is important to keep in mind. Unless there is a real likelihood that any differences between the applicable foreign law and English law on a particular issue may lead to a different outcome, there is no good reason to put a party to the trouble and expense of adducing evidence of foreign law. The object of adjudication is not to achieve a goal of abstract legal purity but to do practical justice between the parties. Moreover, unlike decisions applying English law which may be relied on as precedents in later cases, where foreign law applies there is no larger purpose to be served beyond reaching the correct result in the instant case.

A third important factor is that the presumption of similarity does not itself determine any legal issue. It only ever operates unless and until evidence of foreign law is adduced. Nor does the presumption alter the legal burden of proof. Where the presumption applies, it merely places the burden of adducing evidence on a party who wishes to displace it. It is always open to a party to adduce evidence of the applicable foreign law showing that it is in fact materially different from English law on the point in issue.

These factors provide good pragmatic reasons for applying the presumption in a range of cases, but they also determine its proper limits. There is no warrant for applying the presumption of similarity unless it is a fair and reasonable assumption to make in the particular case. The question is one of fact: in the circumstances is it reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue (meaning that any differences between the two systems are unlikely to lead to a different substantive outcome)?

This guiding principle has been implicit - and sometimes explicit - in the way in which the presumption has been applied from the beginning. Of the scores of cases in which courts in England and Wales and other common law jurisdictions have applied or declined to apply the presumption, I shall highlight a few which illustrate the underlying principle.

An early instance of the presumption being applied is Bentinck v Willink(1842) 2 Hare 1; 67 ER 1. In a dispute concerning a mortgage governed by Dutch law, a point arose on which there was no evidence of the relevant Dutch law. Sir James Wigram V-C said (at 2 Hare 1, 8):

That reasoning may be contrasted with Guepratte v Young (1851) 4 De G & Sm 217; 64 ER 804, where the question was whether a contract entered into by a married woman domiciled in France with respect to her reversionary interests in trust funds (which would have been invalid in English law) was valid in French law. Sir James Knight Bruce V-C said (at p 224) that:

In Pickering v Stephenson(1872) LR 14 Eq 322, an injunction was granted to restrain English directors and shareholders of a Turkish company from using the company’s funds to pay the costs of an action for a libel which affected them only as individuals. Sir John Wickens V-C accepted that the relationship between the company and its members and directors was governed by Turkish law as to which there was no evidence. He nevertheless applied the principle that the governing body of a corporation cannot in general use corporate funds for any purpose other than those for which the funds were contributed, stating (at p 340):

In Saxby v Fulton[1909] 2 KB 208 the court was asked to assume, in the absence of evidence, that the law in Monte Carlo was the same as in England as regards gaming. Bray J declined to make this assumption on the basis that it was notorious that in Monte Carlo roulette is not an unlawful game.

It is apparent from the first edition of Dicey, mentioned above, that many of the early cases in which the presumption of similarity was relied on arose in the United States (typically where a court of one State had to apply the law of another). The classic US case on the scope of the presumption is Cuba Railroad Co v Crosby, 222 US 473 (1912). This involved a claim in tort arising out of an accident at work in Cuba and governed by Cuban law. The US Supreme Court held that the judge had been wrong to apply the presumption that Cuban law was the same as the law of the forum, when no evidence had been given as to the Cuban law. Justice Holmes, who delivered the opinion of the court, said (at p 478):

Another instructive decision is the South African case of Schnaider v Jaffe (1916) 7 CPD 696. On an appeal to the Cape of Good Hope Provincial Division the issue was whether an antenuptial contract providing that each spouse would be responsible for his or her own debts was valid. The contract was made in Russia and its validity was governed by Russian law. A creditor who was seeking to seize the husband’s goods in execution of a debt incurred by the wife contended that the antenuptial contract was invalid. In the absence of any evidence of Russian law, the creditor sought to rely on the presumption that the relevant Russian law was the same as the domestic law. Under South African legislation an antenuptial contract was only valid if registered (a requirement which had not existed at common law). The creditor argued that, presuming Russian law to be the same as the South African law, since there was no evidence that the contract relied on had been registered, it must be regarded as invalid. The court rejected this argument. Gardiner J, with whom Searle J concurred, said (at p 701):

Although not cited in Schnaider v Jaffe, a similar approach had been taken by the Supreme Court of Canada in Purdom v Pavey & Co(1896) 26 SCR 412, 417, where the question was whether a debt could be enforced against a mortgagee of land in Oregon if it was proved that the mortgage was entered into with the intention of defrauding creditors. In circumstances where at common law and until the enactment of statutes “of comparatively modern date”, a mortgagee’s interest was not available to satisfy creditors, the court declined to presume that “the law of Oregon corresponds with the present state of our own statutory law”.

More recently, detailed consideration was given to the question of whether or when the presumption is applicable to statute law by the CanadianFederal Court of Appeal in The Ship “Mercury Bell” v Amosin(1986) 27 DLR (4th) 641. Marceau J (with whom Lacombe J agreed) said at p 650:

In Österreichische Länderbank v S’Elite Ltd [1981] QB 565, a claim on a dishonoured bill of exchange was defended on the ground that the drawing of the bill at a time when the drawer was insolvent amounted to a fraudulent preference as defined by section 44(1) of the Bankruptcy Act 1914 and that this constituted “fraud” within the meaning of sections 29(2) and 30(2) of the Bills of Exchange Act 1882, so as to render the claimant’s title to the bill defective. The validity of the bill of exchange was governed by Austrian law. Roskill LJ, with whom the other members of the Court of Appeal agreed, doubted (obiter at p 569) that the relevant Austrian law could be presumed to be the same as the relevant English law. In Shaker v Al-Bedrawi[2002] EWCA Civ 1452; [2003] Ch 350, discussed below, the Court of Appeal cited this case as an example of a class of cases where English statute law “creates some special institution” (see paras 64, 67).

A very thorough survey of the relevant case law in England, Australia and other common law countries, which refers to the cases cited above among others, is to be found in the judgment of Heydon JA in Damberg v Damberg[2001] NSWCA 87, a decision of the New South Wales Court of Appeal. This survey shows that the presumption that foreign law is materially similar to domestic law is by no means invariable and that there are numerous cases in which courts have declined to adopt it. Damberg v Damberg was itself such case, as the New South Wales Court of Appeal refused to presume that the German law governing the taxation of capital gains was materially similar to the Australian law.

In most of the English cases in which the presumption has been applied, or not, there has been no detailed discussion of the issue. An exception is Shaker v Al-Bedrawi[2002] EWCA Civ 1452; [2003] Ch 350, which raised a question whether a distribution of profits by a company incorporated in Pennsylvania was unlawful. The question was governed by Pennsylvanian law but, in the absence of evidence of Pennsylvanian law, the judge applied the provisions of Part VIII of the English Companies Act 1985 and, presuming the Pennsylvanian law to be similar, concluded that the distribution was unlawful. The Court of Appeal held that he had been wrong to do so.

The decision of the Court of Appeal has been hailed by Professor Fentiman as marking a radical departure in English law which ousted the presumption of similarity and established that the only basis on which domestic law may be applied in the absence of evidence of foreign law is the default rule: see R Fentiman, “Laws, Foreign Laws, and Facts” (2006) 59 Current Legal Problems 391, 419-423; and International Commercial Litigation, 2nd ed (2015), paras 20.90 - 20.102. No subsequent case has treated Shaker as having this effect, and I do not consider that such an interpretation is warranted. It is true that in Shaker the Court of Appeal purported to apply the “default rule” that “the court had to apply English law if foreign law was not pleaded and proved” (para 65). However, the cases relied on as authority for this rule were cases such as Dynamit AG v Rio Tinto Co Ltd[1918] AC 260 (see para 108 above) which are in fact authorities for the presumption of similarity. The judgment does not recognise that the two concepts are different.

As Part VIII of the Companies Act 1985 by its terms applied only to companies registered under the UK Companies Acts, it plainly did not apply to a Pennsylvanian company. If the court had indeed been required to apply English law by default, the attempt to rely on Part VIII could therefore have been disposed of very shortly. Without expressing a final view on the point, the Court of Appeal did suggest that the fact that Part VIII applied only to UK companies might well be a sufficient indication that it could not be applied in that case (see paras 66-67). That suggestion was, in my opinion, misplaced, as the case was not one in which both parties were content to proceed on the basis that English law should be applied. It was common ground that the law to be applied was that of Pennsylvania. In these circumstances, as discussed above, there was no scope for the operation of the default rule. English law was only of potential relevance if and in so far it could be presumed that the law of Pennsylvania was materially similar. The fact that the English statute only applied to UK companies did not rule out such a presumption.

Despite the view provisionally expressed, the Court of Appeal did not in fact treat the actual scope of Part VIII of the Companies Act as conclusive. The court accepted that the test was whether the relevant requirements of Part VIII represented a generally applicable rule of company law which was likely to apply in Pennsylvania (see para 67). That test presupposed that the relevant question was whether in the circumstances it could properly be presumed that the law of Pennsylvania was materially similar to the English statutory law. The Court of Appeal concluded that it could not, as the relevant requirements of Part VIII were derived from a European Community Directive on company law and it was unrealistic to expect the law of Pennsylvania to impose similar requirements (paras 68-69). That conclusion seems to me to be unexceptionable.

Of the cases decided since Shaker, I should mention two that are particularly relied on by the claimant in which the presumption was successfully relied on in the context of an application for permission to serve proceedings out of the jurisdiction. In PT Pan Indonesia Bank Ltd TBK v Marconi Communications International Ltd[2005] EWCA Civ 422; [2005] 2 All ER (Comm) 325, para 70, the Court of Appeal (obiter) described the presumption of similarity as “a necessary rule if proceedings are not to be stultified or unduly delayed, particularly in the interlocutory stages, in any case where the answer to a claim with a foreign element is clear so far as English law is concerned”. More recently, in Qatar Airways Group QCSC v Middle East News FZ llc[2020] EWHC 2975 (QB), paras 171-190, Saini J held that it was sufficient on the facts of that case to rely on the presumption of similarity to show that claims for damages in tort for malicious publication worldwide of a video intended to damage the claimant’s business had a real prospect of success.

Because the application of the presumption of similarity is fact-specific, it is impossible to state any hard and fast rules as to when it may properly be employed. In light of the authorities discussed above, however, the following observations may be made.

First, for reasons already given, as a matter of broad generalisation the presumption is more likely to be appropriate where the applicable foreign law is another common law system rather than a system based on Roman law. There are, however, “great and broad” principles of law which are likely to impose an obligation in all developed legal systems.

Second, also as a matter of broad generalisation, the presumption is less likely to be appropriate where the relevant domestic law is contained in a statute, but this depends on the nature of the statute and, more specifically, the relevant statutory provision. There is a difference between a statute which codifies general principles and one which introduces a local scheme of regulation. The fact that the events in question are not actually within the scope of the domestic statute, for example because it does not have extraterritorial effect, is not a bar to relying on the presumption - as the question is not whether the domestic statute itself applies but whether it is reasonable to presume, unless and until the contrary is shown, that the foreign system of law contains a materially similar rule. That may depend upon the particular aspect of the statutory rule on which a party is seeking to rely. To take an example, it might be reasonable to presume that, if death is caused by a wrongful act of the defendant, the foreign law will make provision for a claim for damages for bereavement. It also seems likely, however, that the extent of such provision will vary from one legal system to another. So, whereas it might be reasonable to presume that the spouse of the deceased is entitled to claim such damages, it might be hard to argue that, for example, the right of action should be presumed to extend - as it now does under section 1A of the Fatal Accidents Act 1976 in the UK - to a cohabiting partner of the deceased.

Third, it is in the nature of the test that its application may often be uncertain so that it is difficult to predict whether a judge will consider that the presumption can be relied on in a particular case. I do not think this problematic, however, given that reliance on the presumption is always a matter of choice. It is always open to the party who is asserting a claim or defence based on foreign law to adduce direct evidence of the content of the relevant foreign law rather than take the risk of relying on the presumption. Equally, it is always open to the other party to adduce such evidence showing that the foreign law is materially different from the corresponding English law rather than take the risk that the presumption will be applied.

Fourth, the procedural context in which the presumption is relied on matters. Self-evidently, there is more scope for relying on the presumption of similarity at an early stage of proceedings when all that a party needs to show in order to be allowed to pursue a claim or defence is that it has a real prospect of success. By contrast, to rely solely on the presumption to seek to prove a case based on foreign law at trial may be a much more precarious course.

I would add that it should not be assumed that the only alternative to relying on the presumption of similarity is necessarily to tender evidence from an expert in the foreign system of law. The old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law. On some occasions the text may require skilled exegesis of a kind which only a lawyer expert in the foreign system of law can provide. But in other cases it may be sufficient to know what the text says. If, for example, the question is whether a spouse has a right to claim damages for bereavement under the applicable foreign law, producing a copy of the relevant foreign legislation (with, if necessary, an English translation) is a much more secure basis for a finding than presuming that the foreign law is the same as the English law. Of course, a judge needs to be alert to whether the text relied on is current. But even if that cannot be guaranteed, the presumption of continuity may be a more reliable foundation in the absence of contrary evidence than the presumption of similarity.

The essential point is that the presumption of similarity is only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence. When English courts are prepared in some cases to draw conclusions about the content of foreign law on such an indirect basis, it makes no sense to reject better, direct evidence when it is available just because it lacks the imprimatur of an expert witness.

Unlike many cases in which a party seeks to rely on the presumption of similarity, the court in the present case has evidence of the applicable foreign law in the form of reports from experts on Egyptian law served by each party. The defendant argues that it is not permissible in such circumstances for the claimant to rely on the presumption of similarity with English law where there are gaps or shortcomings in the expert evidence.

I see no reason why there should be any general rule to that effect. Inevitably, adducing direct evidence of foreign law narrows the potential for relying on the presumption; but whether it eliminates the potential for doing so altogether must depend on the circumstances. For one reason or another, the evidence tendered by the parties may be incomplete. A party or its expert may not have anticipated every point of foreign law which may arise in relation to a particular issue; or a party might consider it unnecessary or disproportionate to adduce evidence of foreign law on a particular matter and choose instead to rely on the presumption. There is no principled reason why reliance on the presumption should be prevented in such circumstances. A common example of a situation where evidence of foreign law is incomplete and where reliance on the presumption may be entirely appropriate is where the court is provided with the text of a foreign statute but does not have evidence either of how the particular statute, or statutes in general, would be interpreted by the foreign court. In such a situation it is often reasonable for the court to presume, in the absence of contrary evidence, that the foreign court would apply similar principles of statutory interpretation to an English court.

That is not to say that there cannot be circumstances in which it would be procedurally unfair to allow a party who has advanced a case based on foreign law and adduced evidence of foreign law in support of that case to invoke the presumption when this evidence proves inadequate. An example of such a case is Tamil Nadu Electricity Board v ST-CMS Electric Company Private Ltd[2007] EWHC 1713 (Comm); [2007] 2 All ER (Comm) 701, cited by counsel for the defendant. In that case the court was asked to determine questions of Indian law with the assistance of expert evidence. During the hearing, the claimant applied for permission to raise a new point of Indian law which had not been addressed in the experts’ reports and to introduce additional evidence of Indian law on this new point. Cooke J refused the application for case management reasons in circumstances where a list of issues had been agreed at the court’s direction, of which this issue did not form part. Unsurprisingly, having refused to allow the new point to be raised, the judge also refused to allow the claimant to argue the point as one of English law relying on the presumption of similarity. As he said (at para 101):

This decision is not authority for any general rule that, where some evidence of foreign law has been adduced, the presumption cannot be relied on in relation to a point of foreign law not covered, or inadequately covered, by the evidence.

The main reason why directions were given for sequential exchange of written expert evidence of Egyptian law in this case was that FS Cairo was opposing the claimant’s application to substitute it as the defendant on the ground that the claims against it were time-barred under Egyptian law. On one view - although the judge ultimately rejected it - it would have been necessary in order to resolve this issue to make a final determination of whether the claims were time-barred, and not merely to decide whether the contrary was reasonably arguable.

The report from the claimant’s expert, Mr Edge, set out the basis under Egyptian law for the vicarious liability claim in tort, together with the basis for his opinion that the limitation period (of three years) did not commence until the claimant learnt the identity of the hotel operator and accordingly had not expired. The defendant’s expert, Mr Ezzo, in contrast, began by considering the potential claim for breach of contract. The thrust of his evidence was that any contract made with FS Cairo for the provision of a car and driver for an excursion was a contract of carriage and, as such, was exclusively governed by the Egyptian Commercial Code. Under the Commercial Code the carrier’s liability for injury to a passenger is strict but is subject to a two-year time limit. Although the limitation period could be interrupted in certain circumstances, those circumstances did not apply in this case and the claim was therefore time-barred. Mr Ezzo also said that under Egyptian law it is not permissible to bring a claim in tort where there is a claim in contract and it is not permissible to bring a claim based upon contractual liability and tort liability at the same time. However, if a court were to conclude that there was a relevant tortious liability, a claim based on such a liability would in his opinion be time-barred.

In a supplemental report served in reply to the defendant’s expert report, the claimant’s expert, Mr Edge, expressed the views that the contract to provide the excursion was not a commercial contract of carriage, at any rate so far as the claimant’s rights are concerned, and that the relevant limitation period is therefore that prescribed by the general Civil Code (and not the Commercial Code). Furthermore, the claimant’s pleaded case does not offend the “doctrine of cumul” (which I understand to be a reference to the rule relied on by the defendant’s expert that it is not permissible to bring a claim in tort where there is a claim in contract) because the claim made is one in tort and the contract is simply the means by which the defendant’s vicarious liability for the negligence of the driver can be established. Mr Edge also responded to an argument made by Mr Ezzo about the operation of the limitation period under the Civil Code.

In the absence of any evidence of Egyptian law, I would see no basis for challenging the decision of the judge that, at this stage of the proceedings, reliance on the presumption of similarity with English law is sufficient to show that the pleaded claims have a real prospect of success. While the precise nature and extent of the obligations owed will no doubt vary from one legal system to another, I agree with McCombe LJ in his judgment in the Court of Appeal (at para 62) that it seems reasonable to presume for the purpose of showing a serious issue to be tried that under any system of law a hotel operator who enters into a contract with a customer to take the customer and members of her family on an excursion in a chauffeur-driven car provided by the hotel will owe obligations under the contract and/or under the law of tort to ensure the safety of those concerned. The judge’s view that the presumption could be relied on for this purpose is in any event an evaluative judgment with which an appellate court should be slow to interfere.

The question then is whether the judge was wrong in law not to reach a different conclusion in light of the expert evidence of Egyptian law which the parties had served. The defendant accepts that the claimant’s expert evidence was sufficient to show that the vicarious liability claim in tort has a real prospect of success. Furthermore, the expert evidence taken as a whole seems to me, if anything, to reinforce that conclusion as regards the claim in contract. It is true that, as counsel for the claimant accept, the supplemental report of the claimant’s expert, Mr Edge, is incorrect in suggesting that the claimant is not making a claim in contract and that her case is simply one in tort. But the defendant’s expert did not contend that FS Cairo has no potential contractual liability under Egyptian law. His argument was that the contract was one of carriage governed by the Commercial Code and, as such, is time-barred. The claimant’s expert gave credible reasons for disputing that analysis and arguing that the relevant time limit is that prescribed by the general Civil Code, which had not expired. Even apart from the presumption, that seems to me enough to show that the claim for breach of contract has a real prospect of success.

It appears to be common ground between the experts that Egyptian law applies what Mr Edge refers to as “the doctrine of cumul” which precludes combining liability in contract and liability in tort. As the expert evidence confirms, the Egyptian legal system is a civil law system, with a civil code that is based in large part upon the French Civil Code. I think that an English court is entitled to take judicial notice of the fact that what is more commonly called the doctrine of “non cumul” (des responsabilités contractuelle et délictuelle) is a basic principle of civil law. Lord Goff of Chieveley did so when he said in Henderson v Merrett Syndicates Ltd (No 1)[1995] 2 AC 145, 184:

All this suggests that the claimant will not under Egyptian law be able to establish, as she could in principle under English law, that the defendant has concurrent liabilities in contract and in tort. Whether she will be confined to her claim in contract, as the defendant’s expert contends, however, or whether she can pursue claims in tort if she does not maintain her claim in contract, as the evidence of the claimant’s expert suggests, is unclear. It is also unclear whether there is any distinction in this regard between the vicarious liability claim and the direct liability claim in tort. In these circumstances I do not think that the judge can be faulted on the current state of the evidence for holding that all the pleaded claims are reasonably arguable for the purpose of establishing the English court’s jurisdiction. I nevertheless consider that it was entirely appropriate, for reasons that I am about to give, for the Court of Appeal to require the claimant to serve revised particulars of claim giving proper particulars of how she intends to put her case under Egyptian law going forward.

Although it upheld the judge’s decision granting permission to serve the claim form on the defendant in Egypt, the Court of Appeal ordered the claimant to serve revised particulars of claim pleading the content of Egyptian law, including the relevant principles and sources, on which she relies and upon which each of the claims is based.

The claimant has applied for permission to cross-appeal on the ground that the Court of Appeal was wrong in principle to make this order. It is submitted that, at least until the defendant pleads a defence relying on particular rules of Egyptian law, the claimant is entitled to rely on the presumption in relation to all her claims and should not be required to plead a substantive case under foreign law first.

This argument misunderstands the nature of the presumption, which again needs to be distinguished from the default rule. If it is realistic to suppose that the defendant might be content for the court to apply English law by default and the claimant would prefer this, a claimant may choose when commencing proceedings not to assert that the claim is governed by foreign law, even if under the relevant rules of private international law that would be the case, and simply to plead a claim based on English law. If the defendant does not respond by pleading that foreign law is applicable, the defendant may find that the time comes when it is too late to raise such a case - as happened, for example, in Balmoral Group Ltd v Borealis (UK) Ltd[2006] EWHC 1900 (Comm); [2006] 2 Lloyd’s Rep 629, para 433, and Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA[2018] EWHC 2759 (Comm); [2019] 1 WLR 82. If, however, the defendant pleads (or it is clear at the outset that the defendant intends to plead) that foreign law is applicable, the claimant must decide whether to contend otherwise and whether to advance a claim for relief under foreign law.

In the present case it is agreed that the law which the court must apply is the law of Egypt and the claimant has amended her claim form and particulars of claim to claim damages pursuant to Egyptian law.

At that point it was, and is, incumbent on the claimant to specify in her statement of case any rules or provisions of Egyptian law on which she intends to rely so that the defendant knows in outline the case it has to meet. A claimant does not have to rely on any rules or provisions of foreign law: parties are entitled, if they choose, simply to rely on the presumption that the foreign law is materially similar to English law. But reliance on the presumption does not alter the ordinary rules of pleading. If a claimant chooses not to plead a case based on any specific rules of the foreign law, hoping to be allowed to do so later if it becomes expedient, the claimant takes the risk of needing to persuade the court at a future date to grant permission to amend - just as in any other situation where a party seeks to change its case. There is no special dispensation for a party who has previously chosen to rely solely on an evidential presumption.

In this case the claimant has served two reports from an expert on Egyptian law which refer to rules of Egyptian law that are not currently pleaded. It is also unclear whether, where there are gaps in her evidence of foreign law, the claimant intends to fill those gaps or to continue to rely solely upon the presumption of similarity with English law. The defendant is entitled to know where the claimant stands on those matters. In these circumstances the direction made by the Court of Appeal requiring the claimant to plead her case on Egyptian law seems to me to be not merely well within the generous ambit of the court’s case management powers, but thoroughly desirable for the orderly progression of these proceedings. I would therefore dismiss the cross-appeal on this point.

I turn to the other issue raised on this appeal, which concerns the scope of the jurisdictional “gateway” for claims in tort.

The present case is one in which, pursuant to CPR rule 6.36, the court may only grant permission to serve a claim form on a defendant out of the jurisdiction if any of the grounds (colloquially referred to as “gateways”) set out in paragraph 3.1 of Practice Direction 6B apply. For claims in tort, the relevant gateway is ground (9). This applies where:

The claimant’s case on the meaning of ground 9(a) is that the term “damage” refers to any significant harm of any kind, whether physical, psychological or financial, which results - either directly or indirectly - from a tortious act committed by the defendant. In a case of the present kind, ground 9(a) thus encompasses not just the injuries sustained in the road accident allegedly caused by the defendant’s negligence but also the sequelae of those injuries and financial losses resulting from them. I will refer to this as the “broad” interpretation of the gateway. On this interpretation, ground 9(a) applies to the claims in tort made by the claimant because, after she returned home to England, she suffered continuing pain and disability from her injuries and incurred financial loss in England. The financial loss claimed included funeral and memorial expenses and probate costs incurred as executrix of her husband’s estate and loss of financial dependency and bereavement damages as his widow. On the claimant’s case, this pain and disability and financial loss was “damage … sustained … within the jurisdiction” which falls within ground 9(a).

The defendant’s case is that ground 9(a) applies only to “damage … sustained … within the jurisdiction” as a direct result of the defendant’s wrongful act and does not include indirect or consequential losses. On this interpretation, which I will refer to as the “narrow” interpretation of the gateway, damage was sustained in this case in Egypt as a direct result of the defendant’s allegedly wrongful act when the claimant and her husband were injured (in his case fatally) in a car crash on 3 January 2010. Indirect consequences of that accident and those injuries subsequently suffered by the claimant in England do not bring the facts of this case within the tort gateway.

As an initial observation, if the claimant’s interpretation is correct, the tort “gateway” is not so much a gateway to bringing proceedings in England against a defendant who is in another country as an open territory with no fence. It would mean that ground 9(a) applies where anyone who lives in England is injured when travelling abroad provided only that the injury sustained is sufficiently serious to cause pain or disability which continues, or financial loss (such as loss of earnings or the cost of medical treatment) which is incurred, after the claimant returns home to England. In effect, therefore, the claimant’s interpretation makes it a sufficient factual basis on which to found jurisdiction over a foreigner who otherwise has no connection with England and Wales that the person whom he is alleged to have wrongfully injured in his own country is an English tourist. Whilst such a rule would no doubt be welcomed by people living in England and Wales who holiday abroad and may reduce the need for travel insurance, no one has suggested any principled basis for it.

There is nevertheless a line of first instance decisions cited by Lord Lloyd-Jones at paras 57-63 above which have accepted the broad interpretation of the tort gateway. These decisions were in turn influenced by cases in Australia and Canada to which Lord Lloyd-Jones has also referred (although the approach in Canada has since changed). The first of the English cases is Booth v Phillips[2004] EWHC 1437 (QB); [2004] 1 WLR 3292, where Mr Nigel Teare QC held that it was sufficient to show that “damage was sustained” in England falling within ground 9(a) that the executrix of the deceased, who had died in an accident on board a ship in Egypt, had paid funeral expenses and suffered loss of dependency in England. In Cooley v Ramsey[2008] EWHC 129 (QB); [2008] IL Pr 27, it was held to be sufficient that the claimant, who had been left gravely handicapped by a road accident in Australia, suffered loss of earnings and costs of care after repatriation to England six months later. Wink v Croatio Osiguranje DD[2013] EWHC 1118 (QB) and Stylianou v Toyoshima[2013] EWHC 2188 (QB) were further cases in which a claimant who lived in England was seriously injured in a road accident abroad (while on holiday in, respectively, Croatia and Western Australia). In each case it was held that “damage was sustained” in England which fell within ground 9(a) by reason of the fact that the claimant suffered continuing physical effects of his injuries and incurred costs of care after being repatriated. This approach was again followed in Pike v The Indian Hotels Co Ltd[2013] EWHC 4096 (QB), where a British tourist who was staying in the Taj Mahal Palace hotel in Mumbai while on a holiday in India suffered serious injuries when attempting to climb out of a third-floor window to escape from a terrorist attack.

In Erste Group Bank AG, London Branch v JSC “VMZ Red October”[2015] EWCA Civ 379; [2015] 1 CLC 706, paras 104-105, the Court of Appeal (Gloster, Aikens and Briggs LJJ) expressed “serious reservations” as to whether these first instance decisions were right in their interpretation of the tort jurisdictional gateway but found it unnecessary to decide the point on the facts of that case. In the proceedings originally brought by the present claimant (“Brownlie I”), the Court of Appeal (Arden LJ, Bean and King LJJ) held that ground 9(a) covers only direct damage and that the first instance cases which had adopted the broad interpretation of the gateway were wrongly decided: see Brownlie v Four Seasons Holdings Inc[2015] EWCA Civ 665; [2016] 1 WLR 1814. But on the further appeal to this court, a majority (Baroness Hale of Richmond, Lord Wilson and Lord Clarke of Stone-cum-Ebony) preferred the broad interpretation, although Lord Sumption and Lord Hughes disagreed: see Brownlie v Four Seasons Holdings Inc[2017] UKSC 80; [2018] 1 WLR 192.

It is rare - and I hope will remain so - for the same question to reach the Supreme Court for a second time in what is essentially the same case - the only difference being that the current defendant is a different company in the same corporate group as the defendant to the original claim. However, the views expressed in Brownlie I about the correct interpretation of ground 9(a) were admittedly obiter dicta and did not establish a binding precedent, as this court concluded that the wrong defendant had been sued so that none of the gateways was applicable. Moreover, the issue is one on which judicial opinion has been split. We must in these circumstances form our own opinions on the meaning of the gateway.

In terms of principle, the main, if not the only, positive argument which has been advanced in favour of the broad interpretation of ground 9(a) is that it is said to be the “ordinary and natural meaning” of the language used. This was the argument accepted by Mr Nigel Teare QC in Booth v Phillips[2004] EWHC 1437 (Comm); [2004] 1 WLR 3292, the first in the line of cases mentioned above. His reasoning was that the word “damage” in what is now ground 9(a) “should be given its ordinary and natural meaning, namely, harm which has been sustained by the claimant, whether physical or economic”: see para 35. The same reasoning has been adopted (along with reliance on the earlier decisions) in the later first instance cases and it underpinned the view of the majority of this court in Brownlie I. Baroness Hale said that she had for a while been attracted by a middle course which would restrict “damage” to continuing bodily (physical and psychological) effects of the wrongful act but would exclude consequential financial losses. However, she said that it was difficult to find a warrant for that distinction in the language used and she ultimately concluded that she would “adopt the ordinary and natural meaning of the language used in the Rules” (para 55).

Where I part company with this approach is not in my understanding of what the word “damage” means as a word of the English language. It is in thinking that the width of the gateway does not depend on what that term means. I do not doubt that the word “damage” is apt to refer to any form of harm whether physical, psychological or economic. Still less would I disagree with the statement in Challenor v Douglas[1983] 2 NSWLR 405, 408G, cited by counsel for the claimant on this appeal, that: “Damage is damage”. So indeed it is, and it is not surprising - indeed it seems necessary - that such a broad term should be used in a rule which is applicable to all claims in tort, including therefore torts where the primary damage sustained is personal injury, others where it consists in physical damage to property and some torts (for example, in English law inducing a breach of contract or causing loss by unlawful means) where the damage sustained is inherently economic. I do not consider, however, that the scope of ground 9(a) can be ascertained simply by observing (correctly) that the word “damage” as a matter of ordinary language encompasses all these different forms of harm.

The words of the rule must be read in context. The context is that they are intended to describe a ground on which a claim in tort may potentially be brought in England and Wales against someone situated in another country. It is clear from this context that the words of ground 9(a), although on their face entirely open-ended, do not refer to any physical, psychological or economic damage which the claimant has ever sustained in England and Wales in any circumstances during her lifetime. It is implicit that ground 9(a) applies only to damage which is connected in some way with the claim in tort which the claimant wishes to bring and with the act committed by the defendant which is said to give rise to that claim. The key question is the nature of the required connection. That is not stated in ground 9(a), which says nothing about how “damage … sustained … within the jurisdiction” must be connected with any conduct of the defendant in order to come within the gateway. The nature of the required connection therefore cannot be discovered simply by reflecting on the ordinary meanings of the words used.

Thus, in a typical personal injury case where injury sustained in a road accident allegedly caused by negligent driving of the defendant results indirectly in financial loss to the claimant, I see no difficulty as a matter of ordinary language in describing such financial loss as “damage … sustained” by the claimant. I have more difficulty with the claimant’s contention that a person who suffers from enduring pain or disability caused by such an accident can be said to continue to “sustain damage” wherever she goes for as long as the pain or disability lasts (possibly the rest of her life). To my mind, this is a strained and unnatural use of language. But I accept that it is a possible meaning of the words used in ground 9(a). What is meant by the words “damage was sustained … within the jurisdiction”, however, is not the critical question. That question, as I see it, is whether ground 9(a) applies only where significant damage sustained within the jurisdiction was directly caused by a wrongful act of the defendant or whether it extends to damage sustained as an indirect consequence of an injury caused by such a wrongful act. The language of the rule is entirely silent about which of these interpretations is correct.

An argument for the narrow interpretation which has been relied in earlier cases, and again by the defendant on this appeal, is that ground (9)(a) was introduced in order to bring the tort gateway into line with what was originally article 5(2) of the Brussels Convention and is now article 7(2) of the Brussels Recast Regulation, and that it should in these circumstances be construed as having a similar meaning. Article 7(2) is one of a limited number of exceptions to the general rule laid down in article 4 of the Brussels Recast Regulation that persons domiciled in a member state of the European Union may only be sued in the courts of that member state. It provides that a person domiciled in a member state may be sued in another member state:

I agree with Lord Lloyd-Jones, however, for the reasons he gives, that in interpreting the tort gateway which applies in cases not covered by the Brussels regime, no inference can properly be drawn that it is intended to have exactly the same scope as article 7(2). As Lord Lloyd-Jones has explained, when the Civil Jurisdiction and Judgments Act 1982 came into force, the English domestic rule was amended to include for the first time claims in tort where “the damage was sustained … within the jurisdiction”. (The definite article was later deleted to make it clear that any significant damage and not necessarily all relevant damage will suffice.) It appears that the reason for widening the rule in this way was to ensure that it was not narrower in scope than the corresponding rule in the Brussels regime. It does not follow, however, that the intention was to assimilate the two rules or to ensure that the domestic rule was no wider than its European counterpart. Not only is the wording of the two rules different, but the Brussels regime operates in a different way from the domestic rules. The Brussels regime is intended to allocate jurisdiction between member states of the EU in a uniform manner which leaves no room for discretion. As part of this scheme, the exceptions to the general rule that jurisdiction is based on the defendant’s domicile are intended to be narrowly confined. The domestic rules, on the other hand, are intended to apply in all situations where there is no such reciprocal arrangement allocating jurisdiction between the UK and the state where the defendant is domiciled and to operate more flexibly. In these circumstances it would be anomalous if ground (9) were narrower in scope than article 7(2) of the Brussels Recast Regulation; but there is no anomaly if ground (9) applies more widely.

Another point on which I agree with Lord Lloyd-Jones is that there is no reason to equate the meaning of the “damage … sustained” referred to in ground 9(a) with damage that completes a cause of action in tort. In addition to the reasons he gives, with which I agree, another reason is that the gateway applies irrespective of the law applicable to the claim and there is no reason why the precise analysis of when the cause of action was complete under the applicable law should determine where proceedings may be brought.

I also agree with Lord Lloyd-Jones that it cannot be inferred that ground 9 has the same scope as article 4(1) of the Rome II Regulation (quoted at para 97 above). In determining the law applicable to a claim in tort, article 4(1) expressly draws a distinction between “the country in which the damage occurs” and “the country or countries in which the indirect consequences of [the event giving rise to the damage] occurred”. Applying this distinction, the Court of Justice held in Lazar v Allianz SpA (Case C-350/14) [2016] 1 WLR 835 that, in a case arising from a road traffic accident, “the country in which the damage occurs” is the country where the injuries occurred, which in that case was Italy where the claimant’s daughter was fatally injured in such an accident. Psychological or financial damage sustained in Romania by the close relatives of the deceased was classified as indirect consequences of the accident. Once again, however, not only is article 4(1) worded differently from ground 9, but the legal context is different. There is no necessary relationship between the law applicable to a claim and the question whether the courts of a country have jurisdiction over the claim.

Where the case law on both article 7(2) of the Brussels Recast Regulation and article 4(1) of the Rome II Regulation is in my view relevant is in rebutting an argument made by the claimant in this case that the broad interpretation of ground 9(a) should be adopted because the distinction between direct and indirect damage is not easy to draw in all cases. The case law on the European instruments shows that the distinction between direct and indirect damage from tortious conduct is one that is well recognised and that the task for the court in drawing it “is relatively straightforward in most circumstances” (per Lord Hodge in AMT Futures, para 24). The fact that there can sometimes be hard cases is not a good reason to decline to draw the distinction and to say that ground 9(a) applies to any damage connected to the defendant’s act, however tenuous or adventitious the connection. Furthermore, as Professor Louise Merrett has pointed out in an insightful discussion of Brownlie I, it is not necessary to draw a line between direct and indirect damage generally, or for all purposes; all that is necessary is to establish where direct damage occurs, which in personal injury cases will clearly be where the accident took place: see Louise Merrett, “Forum Conveniens” in William Day and Sarah Worthington (eds), Challenging Private Law: Lord Sumption on the Supreme Court (2020) at p 376.

I also note that, in interpreting and applying ground 9(a) of the domestic rule, the distinction between damage directly and indirectly caused by the defendant’s act has been drawn by the English courts in cases not involving personal injury.

In the Eras Eil Actions [1992] 1 Lloyd’s Rep 570, 591, Mustill LJ observed that what are now ground 9(a) and article 7(2) operate easily enough where physical damage or personal injury are caused but create problems in the case of economic torts. He rejected the concept that a claimant can be said to suffer loss falling within these rules in the country where its head office is situated on the basis that this would give a claimant in tort “the option of suing in the courts of his own domicile”.

In Bastone & Firminger Ltd v Nasima Enterprises (Nigeria) Ltd[1996] CLC 1902 an English company exported goods to Nigeria. The goods were never paid for and, amongst other claims, the exporter sought to bring a claim for conversion or wrongful interference with the goods against the third defendant, a Nigerian bank. It was argued that, although the wrongful acts took place in Nigeria, the damage was sustained in England for the purpose of what is now ground 9(a) because the exporter suffered loss in England. Rix J rejected this argument. He held that the damage was sustained in Nigeria, as it was there that the goods and documents of title were lost to the exporter: it was only the financial consequences of that loss which were felt in England.

In ABCI (formerly Arab Business Consortium International Finance and Investment) v Banque Franco-Tunisienne[2003] EWCA Civ 205; [2003] 2 Lloyd’s Rep 146, Mance LJ giving the judgment of the Court of Appeal said (at para 44) in relation to what is now ground 9(a):

Eurasia Sports Ltd v Tsai[2018] EWCA Civ 1742; [2018] 1 WLR 6089 is another case in which a claim in tort for conspiracy was held not to satisfy the test in ground 9(a). Floyd LJ (with whose judgment Longmore and Gross LJJ agreed) said, at para 21:

These authorities - which include three decisions of the Court of Appeal - are inconsistent with the broad interpretation of the tort gateway. In each of them the court adopted the distinction between damage directly and indirectly caused by the defendant’s tortious act. It is true that in each case the court considered that ground 9(a) should be interpreted in line with article 7(2) of the Brussels Recast Regulation (or its predecessors) - which, as I have indicated, is not an inference that I think it safe to make. I nevertheless consider that the courts in these cases were correct to adopt the narrow interpretation of the tort gateway for the reasons that I am about to give. I also find cogent the point made in these cases that, to hold that any loss felt by a claimant in the place where he or she resides (or, in the case of a corporation, has its business seat) is damage falling within the scope of ground 9(a) would be tantamount to holding that claimants in tort have the option of suing in the courts of their own country. Such an option is not an accepted or acceptable basis on which to found jurisdiction. This point seems to me just as pertinent in cases of personal injury as in cases where the claim is for conversion of goods or conspiracy to defraud. Conversely, these authorities also show that, if no distinction is drawn between damage directly and indirectly caused by the defendant’s wrongful act, the logical consequence is that ground 9(a) will be satisfied in all cases where a claimant situated in England suffers any significant financial detriment for which damages are claimed in tort.

No doubt in theory a distinction could be drawn of the kind which Lady Hale contemplated (but rejected) in Brownlie I (see para 175 above) between bodily and financial consequences of an initial bodily injury, or between cases where financial or other harm is consequential on bodily injury and cases where all the damage suffered is financial, which I understand to be the distinction drawn by Lord Lloyd-Jones at para 76 of his judgment. Once it is accepted, however, that the distinction between direct and indirect damage is relevant in cases of financial damage, I am unable to see any warrant in either the language or the purpose of the tort gateway for restricting the distinction to such cases and declining to apply it in cases involving bodily injury. I therefore do not think that the authorities referred to at paras 185-188 above can be distinguished on this ground. A critical consideration is the purpose of the jurisdictional gateways, to which I now turn.

Where, as often happens and is the case here, a court is required to interpret legislative words which are capable as a matter of language of being understood in more than one way, the modern approach is to consider the purpose of the legislation and decide which meaning best fits that purpose. This purposive method of interpretation is just as applicable where the rule is contained in delegated legislation such as the Civil Procedure Rules or a Practice Direction which accompanies them (made pursuant to the Civil Procedure Act 1977 and Part 1 of Schedule 2 to the Constitutional Reform Act 2005) as it is in relation to primary legislation.

The purpose of the jurisdictional gateways is clear. It is to identify a connection between a person situated abroad or an act done by that person on the one hand and this country on the other hand which is capable of providing a sufficient basis for the assertion by the English courts of jurisdiction over that person (it being a further question whether the court should exercise such jurisdiction). As Lord Sumption put it in Brownlie I at para 28, all the gateways are in different ways “concerned to identify some substantial and not merely casual or adventitious link between the cause of action and England”.

The reason for imposing such a threshold requirement is in turn not hard to find. It would not be legitimate or just to the proposed defendant for an English court to assert power over that person to adjudicate on a claim without their consent merely on the ground that the person who wishes to bring the claim is in England nor even that England would clearly be the most suitable place, on balance, to hold a trial. The territorial nature of jurisdiction demands that there should be a substantial connection between the territory of the state from which the court’s authority derives and either the proposed defendant or something which that person has done before the assertion of personal jurisdiction over the proposed defendant is justified.

Treating it as sufficient to satisfy the tort jurisdictional gateway that an individual who sustained bodily injuries in an accident abroad returns to England, or visits England, bringing their injuries with them, would be inconsistent with this purpose. As noted earlier, the practical effect of such an interpretation would be that, in any claim in tort for serious injuries sustained in another country, it is treated as a link with England sufficient to satisfy the gateway test that the claimant is ordinarily resident here. That stands the underlying principle on its head since, as Lord Sumption observed in Brownlie I at para 28, personal connections between the parties and England are generally relevant to jurisdiction only in the case of the defendant. Indeed, the claimant would not even need to show residence in England. On the broad interpretation of ground 9(a) for which the claimant contends, the gateway is portable. If that interpretation is correct, a claimant can create a link with England which satisfies the gateway requirement for suing a foreign defendant in the English courts by travelling to England, for example for medical treatment, after the event giving rise to the damage has occurred. Thus, it would be enough to satisfy the gateway requirement for bringing a claim in tort in the English courts that, for example, an Egyptian claimant badly injured in Egypt in a road traffic collision with a vehicle driven by another Egyptian driver afterwards comes to England while still suffering pain or disability. An interpretation which has this consequence is not in my opinion a rational or defensible interpretation of the rules of court.

The answer given on behalf of the claimant to this objection is that it does not matter if the gateway requirement is absurdly wide in this way because, to obtain permission to sue the defendant in England, the claimant also needs to satisfy the court, in accordance with CPR rule 6.37(3), that England and Wales is “the proper place in which to bring the claim”; and, in a case where the only connection with England is that the claimant is present here, this further requirement would not be met.

I do not consider this an adequate answer. The purpose of having grounds for service out of the jurisdiction which must apply before the question whether England and Wales is the proper place in which to bring the claim arises is to make the existence of a sufficient connection with the jurisdiction a prerequisite to permitting a person outside the jurisdiction to be sued here. A test met by the occurrence in England and Wales of any harm resulting indirectly from a wrong committed elsewhere singularly fails to achieve this purpose. It provides an irrational and almost wholly ineffectual threshold requirement.

There is a view, of which Professor Adrian Briggs is a distinguished advocate, that we would be better off without jurisdictional gateways at all, leaving everything to the doctrine of forum conveniens: see A Briggs, Civil Jurisdiction and Judgments, 7thed (2021), para 24.06. I do not share that view. For present purposes, however, this difference of opinion is not material. The policy reflected in the rules is to impose a threshold test which must be met before jurisdiction may be asserted over a foreign defendant. For as long as this remains the policy of the law, the duty of the courts is to give effect to it by interpreting the gateways so far as possible in ways which render them meaningful: it is not to undermine the legislative policy by interpreting one of the gateways in a way which deprives it of practical effect.

A further reason why, in my view, it is wrong to rely on CPR rule 6.37(3) to compensate for an over-expansive interpretation of the tort gateway is that such an approach conflates two questions which under the framework for establishing jurisdiction are intended to be kept distinct. The question whether England and Wales is “the proper place in which to bring the claim” is intended to codify the doctrine of forum conveniens (also sometimes referred to as forum non conveniens), which applies where there is a sufficient basis for founding jurisdiction in England but there is also some other available forum, having competent jurisdiction, where the case could be tried. The test of forum conveniens, as Lord Lloyd-Jones has pointed out at para 78 above, is not concerned merely with practical convenience. As stated by Lord Goff of Chieveley in his classic exposition of the doctrine in Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada)[1987] AC 460, 480G, the object of the inquiry is “to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”. That, however, is an inquiry of a different kind and with a different purpose from the question whether there is a sufficient connection between the defendant and the jurisdiction to make it just or legitimate for the courts of England and Wales to assert jurisdiction over the defendant. Whereas the gateways look back to the events which gave rise to the claim, the test of forum conveniens looks forward to the nature and shape of the dispute at a trial. A key factor is usually where witnesses and documentary evidence are located (see eg VTB Capital plc v Nutritek International Corpn[2013] UKSC 5; [2013] 2 AC 337, para 62); but other factors are also relevant such as the law which the court will have to apply and the places where the parties respectively reside or carry on business: see TheSpiliada at p 481. In exceptional cases it may also be necessary to consider an allegation that the claimant would not be able to receive a fair trial in the alternative forum. None of those factors is relevant to whether there is a sufficient connection between the defendant and England to make it legitimate for the English court to assume jurisdiction in a case where the defendant has not submitted to the jurisdiction of the English courts, and it is wrong in principle as well as inconsistent with how the law has been applied to trade off the absence of such a connection against the relative advantages of England as a place to hold a trial. To elide the two questions, in my view, involves a category error.

Even if - contrary to my opinion and to how I understand the structure of the rules - the two kinds of consideration could in principle properly be weighed against each other, attempting to do so would substantially increase the uncertainty already inherent in the test of forum conveniens. To put it at its lowest, there is no ready way to balance the lack of any substantial connection between the proposed defendant and England against factors which would make England a suitable forum for a trial. Widening what is already a very wide-ranging evaluative assessment to include the presence or strength of such a connection would exacerbate the unpredictability, inefficiency and unfairness of the “proper place” requirement as a means of determining whether proceedings may be brought in England.

In the absence of any prescribed decision procedure or ranking of factors, different judges assessing whether England and Wales is the appropriate forum will inevitably attach different degrees of weight to different factors and may reach differing conclusions on similar facts without either conclusion being susceptible to legal challenge. Not only is such inconsistency of outcome itself a source of injustice, but it also encourages satellite litigation and causes defendants who have no real connection with England to have to incur the difficulty and expense of instructing English lawyers to apply in England to contest the jurisdiction of the English courts. That gives a claimant a significant and unfair tactical advantage.

Ever since Lord Templeman in The Spiliada at p 465 expressed the optimistic hope that in future cases “the judge will be allowed to study the evidence and refresh his memory of the speech of [Lord Goff] in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days” and “[a]n appeal should be rare,” judges have regularly complained about the time and expense consumed in arguments about forum conveniens: see eg VTB Capital plc v Nutritek International Corpn[2013] UKSC 5; [2013] 2 AC 337, paras 81-89 (Lord Neuberger). It is, however, unfair to blame the parties for this consequence and unrealistic to expect otherwise when much often turns on whether jurisdiction can be established over a foreign defendant and the tendency of the English courts has been to expand the scope of a largely unfettered judicial discretion, with all the uncertainty and potential for costly disputes which that entails. In Club Resorts Ltd v Van Breda2012 SCC 17, para 73, LeBel J, giving the judgment of the Supreme Court of Canada, said:

These considerations underline the need to interpret the gateways in a way which gives effect to their purpose and requires a real and substantial connection with England to be established before the court applies the test of forum conveniens. But they also bear in another way on how the gateways should be construed. CPR rule 1.2(b) requires the court in interpreting the Civil Procedure Rules to seek to give effect to the overriding objective of enabling the court to deal with cases justly and at proportionate cost. This includes, so far as is practicable, (a) ensuring that the parties are on an equal footing, (b) saving expense, (c) dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party, (d) ensuring that it is dealt with expeditiously and fairly, and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases: see CPR rule 1.1(1). The point is well made by Professor Andrew Dickinson in a case note on Brownlie I that adopting a wide interpretation of the tort gateway which makes the assumption of jurisdiction almost wholly dependent on a discretionary test of forum conveniens conflicts with the overriding objective. It does so by potentially (a) placing the parties on an unequal footing, given the defendant’s foreign residence and lack of connection to the English jurisdiction, (b) increasing expense, (c) adding complexity, (d) causing delay, and (e) occupying the public resources of the court: see Andrew Dickinson, “Faulty Powers: One-Star Service in the English Courts” [2018] LMCLQ 189. If an illustration is needed, the present case provides a dismal example.

A further concern about an approach which leaves almost everything to forum conveniens is that, if invited to exercise a largely unfettered discretion, judges cannot be relied on to require a real and substantial connection between the defendant’s conduct and England and Wales to be shown before permitting a claimant to sue a foreign defendant. That at least is the lesson I draw from the series of first instance decisions which I have cited at para 163 above, holding that pain or financial loss felt in England in consequence of personal injuries sustained in an accident abroad was enough to get through the tort gateway. In each of those cases the judge went on to consider whether England was “the proper place in which to bring the claim”. In every case the judge felt able to conclude that it was.

Typical of the reasoning in these cases is Stylianou v Toyoshima[2013] EWHC 2188 (QB), paras 111-112, where the judge decided that England was the forum conveniens “in spite of the fact that the accident occurred in Australia, the injuries were sustained there, the applicable law is, as I have found, Western Australian, and that proceedings in Australia were actively continued for nearly two and a half years.” What weighed most heavily in the balance for him was that the only issue in dispute was the quantum of the claim and the claimant was English, lived in England and could not travel to Australia because of her injuries which would make it hard for her to give instructions during the hearing. The fact that a large number of expert witnesses would have to travel to Australia in order to give evidence was also seen as an important factor. The fact that the defendant had no connection with England apart from having had the misfortune to be involved in a collision with a British holidaymaker while driving in Western Australia does not seem to have been given any weight at all.

The reasons which persuaded the judge that England is the proper place in which to bring the present proceedings were of a similar nature to those relied on in the earlier cases. The main reasons appear to have been: that to a significant extent the claimant’s losses have been experienced in England and the witnesses who would testify to those losses, including the claimant herself, live here; that a trial in England would be likely to reduce the need for translation (because English is more widely spoken in Egypt than Arabic is in England); and that, because in the Egyptian legal system there is an appeal as of right to the highest court, the scope for litigation to take longer if conducted in Egypt “would seem inevitable”: see [2019] EWHC 2533 (QB), para 139. In relation to this last factor, the irony seems to have been lost that, ten years after the claim form was issued, these proceedings in England are still bogged down in a preliminary dispute about jurisdiction, which is now on a second appeal to this country’s highest court.

I have no doubt that the judges who decided that England was the appropriate forum in these cases were doing their best to be impartial. But it is human nature to wish, if possible, to allow a person who is before the court and who has suffered what may have been catastrophic injuries apparently as a result of another’s wrongdoing to proceed with a claim for compensation rather than sending him or her away to try to bring proceedings in a foreign country. It is also human nature for a judge who has spent his or her professional career working in a particular legal system to attach more weight to its perceived advantages than those of the legal system of a faraway country of which the judge may know little or nothing. Such factors are likely, on the evidence of these cases, to incline a judge who is afforded a discretion to exercise it in favour of permitting service outside the jurisdiction, even if the claimant’s injuries were sustained abroad and there is no real or substantial connection between the proposed defendant and the conduct which gave rise to the claim and England and Wales.

To frame the question in a neutral way, I think it useful to contemplate the situation which arises in such cases in reverse. Suppose that a British citizen who has lived her whole life in England drives carelessly on an English road and collides with another vehicle causing a serious injury to a passenger travelling in that vehicle. It so happens that the passenger is a tourist visiting this country from, say, the People’s Republic of China. The passenger returns home to China and wishes to bring a claim for damages for personal injury against the driver in his local court. He argues that the claim ought to be tried in China as, although the claim is governed by English law, no significant issue of law is likely to arise and liability is likely to be admitted; most of the witnesses whose evidence is relevant to the quantum of the claim, including the claimant himself, are situated in China and do not speak English, and most of the documents relating to quantum are in the Chinese language; moreover, the claim would be tried more quickly and cheaply in the Chinese courts. In such a case I cannot accept that the fact that the claimant has suffered continuing pain and incurred the cost of medical treatment and loss of earnings in China would amount to a link with that jurisdiction capable of justifying permitting proceedings to be brought against the driver in China, provided only that the Chinese court considers that practical considerations of the kind mentioned make China, on balance, the proper place in which to bring the claim.

In my view, the English courts should do as we would be done by and interpret the tort gateway in a way which gives effect to its purpose of requiring a real and substantial connection with the jurisdiction and which provides a legitimate and stable basis for the assumption of jurisdiction over a foreign defendant. I accordingly consider that the narrow interpretation of the tort gateway adopted in the cases involving economic torts is correct and that the first instance cases which have adopted the broad interpretation in relation to personal injury claims were wrongly decided on this point and should be overruled.

I would therefore hold that, as in this case the road traffic accident and the injuries sustained in that accident occurred in Egypt, Egypt is the place where all the damage falling within the scope of ground 9(a) was sustained. The continuing pain and disability suffered, and financial costs incurred, after the claimant returned home to England was not damage directly caused by the defendant’s alleged negligence and does not bring the claim within the tort gateway.

That said, the extensive argument which the Court of Appeal and this court have received on this issue would seem to have been unnecessary, as it would appear that in this case the claimant did not actually need to establish that her claims in tort fall within ground (9). This is because she also has a claim for breach of contract against the same defendant which has been held to fall within the gateway for contractual claims and which arises out of the same or closely connected facts.

To found jurisdiction in England and Wales for her claim for breach of contract, the claimant relied on ground (6)(a), which applies where the contract was made within the jurisdiction. The judge concluded that the contract entered into when the claimant booked the sightseeing excursion in a telephone call made to the hotel before she left England came within this gateway. He reached that conclusion by applying the rule that a contract entered into by an instantaneous form of communication such as telephone is made when and where the acceptance of an offer is received by the offeror. Although there is no evidence about the detail of the relevant conversation, in Brownlie I the Court of Appeal inferred that, when she telephoned the hotel, it is likely that the claimant made an offer by explaining her requirements for the excursion, which the hotel concierge accepted. The contract was made when and where the claimant heard that acceptance and was therefore made in England. On the application for permission to serve the amended claim form on the present defendant, Nicol J followed this approach and found that ground 6(a) was satisfied.

On what was certainly a permissible view of the facts, the judge was bound to find as he did by the decision of the Court of Appeal in Entores Ltd v Miles Far East Corpn [1955] 2 QB 327. In that case the Court of Appeal applied rules developed for the purpose of deciding whether a contract has been concluded to answer the different question of where a contract was made in interpreting one of the grounds for asserting jurisdiction over a defendant situated abroad. I must say that I find that an unsatisfactory approach. It is a sound rule that no contract is made by instantaneous communication unless and until acceptance of an offer is received. If a telephone call gets cut off before an acceptance of an offer spoken by the offeree is heard by the offeror - to take an example discussed in the Entores case, it is fair to hold that no contract has been concluded. To apply the same approach to decide whether the English courts have jurisdiction in relation to a claim made under a contract, however, produces entirely arbitrary results. The connection with England is no greater where the party to an international call who is situated in England is the one who makes the offer than it is where that person is the party who accepts the offer by which a contract is made. There is no principled basis for distinguishing between the two situations. The fact that one party is in England when the contract was made should either be sufficient or insufficient to satisfy the gateway requirement. It makes no sense that the result should depend upon a fine analysis of exactly who said what to whom in the conversation in which the contract was made.

The bare fact that one of the parties was in England when the contract was made is in modern times a tenuous connection with the jurisdiction - all the more so compared with other connecting factors which are sufficient to satisfy ground (6) such as the fact that the contract is governed by English law. There seems to me much to be said for treating ground 6(a) as inapplicable where one of the parties was situated in another country when the contract was made. This result could be achieved by interpreting or redrafting ground 6(a) to apply only when both parties were within the jurisdiction when they made the contract. The question does not arise for decision in this case, however, as permission to appeal from the judge’s conclusion on this issue was refused.

Where (i) two different claims against a defendant arise out of the same or closely connected facts, (ii) one of the claims meets a gateway requirement but the other does not, and (iii) the court is satisfied that England and Wales is the proper place in which to bring both claims, can both claims be brought in the English courts? It might be thought that the answer should be “yes” and that the justice and convenience of trying the connected claims together ought, in these circumstances, to trump the fact that one of the claims is not, considered by itself, sufficiently connected with England and Wales to pass through the gateway for claims of the relevant type. There is nothing in the rules which says in terms that permission may only be given to serve a claim form out of the jurisdiction if each claim included in the claim form individually falls within one or more of the gateways. But that is how the rules have been interpreted: see eg Metall und Rohstoff AG v Donaldson, Lufkin and Jenrette Inc [1990] 1 QB 391. The law was reformed in 2015, however, when on the recommendation of the Lord Chancellor’s Advisory Committee on Private International Law a new ground (4A) was added to the list of grounds in the Practice Direction. Ground (4A) applies where:

In the present case the claims made in tort arise out of facts which, to the extent that they are not exactly the same, are very closely connected to the facts which give rise to the claim in contract made against the same defendant in reliance on ground (6). The claims in tort therefore appear to fall squarely within ground (4A). As it has been held that the claim in contract falls within ground (6), it would accordingly seem unnecessary for the claimant to show that her claims in tort come within the tort gateway.

Ground (4A) did not exist in 2013 when the claimant applied in Brownlie I for permission to serve her claim form out of the jurisdiction. However, it came into effect on 1 October 2015 and was therefore available when the application for permission to serve the claim form out of the jurisdiction on the present defendant was made in 2019. Unfortunately, ground (4A) appears to have been overlooked by the claimant’s legal advisers until attention was drawn to it by Lord Burrows during the hearing of this appeal. The parties were given an opportunity to file written submissions after the hearing on the applicability of ground (4A). No doubt for good reason, the claimant took the position that she does not seek to rely upon ground (4A) at this stage of the proceedings, having not done so in the courts below.

As the claimant has eschewed reliance on ground (4A), I would hold that she cannot bring her claims in tort in England. Considered independently of the claims in contract, the facts giving rise to those claims are insufficiently connected with England to pass through the gateway for claims in tort. I would accordingly allow the appeal on this issue, whilst dismissing the appeal in relation to the claims for breach of contract.