Lady Brownlie successful in the Court of Appeal

29 July 2020

Brownlie v FS Cairo (Brownlie No.2)

The Court of Appeal has today handed down its judgment by a 2-1 majority has rejected the Defendant’s jurisdiction challenge in this case.  This means that :

  • For the purposes of the tort gateway, damage means “any substantial damage”;
  • The Court can presume that Egyptian law is materially the same as English law; and
  • That the claim has reasonable prospects of success.

Accordingly Lady Brownlie can now bring her claim in the High Court in England.

More generally it means that those who suffer injuries in foreign accidents can bring their claims in the English Court.  This is subject only to it being agreed or established that the English Courts are the correct forum, and this was agreed in Lady Brownlie’s case.

The Judgment of the Court of Appeal runs to over 100 pages, and addresses some very complex legal issues.  Nevertheless, it is important to remember that the underlying claim is very straightforward. 

Lady Brownlie and her husband, the Late Sir Ian Brownlie QC, booked an Egyptian holiday with the Four Seasons Hotel Group.  This included a “desert safari tour”.  They thought that because they were travelling with a well-respected international chain the holiday would be very safe, and that if anything went wrong they would not face any unnecessary difficulty.

Unfortunately they were proved wrong on both points. 

Very tragically, the desert safari tour ended in a fatal accident.  Sir Ian died, as did his daughter, a mother of two young children, and Lady Brownlie received serious injuries.  The Brownlies were clearly not responsible for the accident, and we sent a Letter of Claim to the Head Office of the Four Seasons Group, which is based in Toronto.  In it we asked them to identify which company within the Group should be named as the Defendant. 

This is not an unreasonable question to ask of the legal department in a multi-national company, and ordinarily we would have expected a very straight answer.  Unhappily it took about ten years of litigation, and progression through the High Court, the Court of Appeal and the Supreme Court, which ordered the Defendant and its legal team to stop their “ducking and weaving”, and to provide the necessary information. We then learnt that the correct Four Seasons entity to be named as the Defendant was a hitherto undisclosed and undiscoverable Egyptian sub-company within the Group.

This meant that Lady Brownlie had to amend her claim to name that new Defendant.  This involved a number of procedural hurdles, which culminated in a Hearing in the summer of 2019, at which Nicol J allowed Lady Brownlie to proceed against the “new” Defendant. I say “new” because there has been complete continuity on the defence side.  They had the same solicitors, the same Counsel, and much the same legal arguments, and I have no doubt that in reality the claim is still being defended from the Head Office of the Four Seasons Group in Canada.

It was Nicol J’s decision that was the subject of this appeal, and I am pleased to say that the Court both upheld this decision, and endorsed some of the obiter comments that were previously made by the Supreme Court. In plain terms, this means that Lady Brownlie has been right all along.

We very much hope that the Four Seasons Group will not seek to cause any further obstructions, so that Lady Brownlie can finally pursue her case through the High Court, and have access to justice.     

Further information

If you would like to discuss a possible clinical negligence claim please contact one of our Medical Negligence & Personal Injury lawyers on 020 7814 1200, or email us at claims@kingsleynapley.co.uk.

About the author

Terrence Donovan is the Head of the Clinical Negligence and Personal Injury Team at Kingsley Napley LLP.  If you have been affected by any of the issues discussed in this blog you can contact him on 020 7814 1260 or at tdonovan@kingsleynapley.co.uk.

 

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