I. INTRODUCTION
This article examines the UK Supreme Court's judgment in FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II).Footnote 1 This is the latest in a series of court cases which have arisen following a road accident in Egypt in 2010. Chief among the issues for the Supreme Court's consideration in Brownlie II was the meaning of ‘damage’ sustained in England, one of the heads of jurisdiction (or ‘gateways’) under paragraph 3.1 of Practice Direction 6B of the Civil Procedure Rules (CPR PD 6B para 3.1). A further question was whether the claimant could rely on the presumption that Egyptian law, which governed the parties’ dispute, but had not been adequately proved by the claimant, was materially similar to English law on the issues involved, thus enabling the claimant to show that the claim against the defendant had a reasonable prospect of success (‘the foreign law question’).
CPR PD 6B para 3.1(9)(a) is one of two gateways through which a claimant in an international tort action can seek to obtain the English court's permission to summon a foreign-based defendant to appear in proceedings in England. Few issues in English private international law have attracted as much debate and disagreement among judges and scholars in recent times as the interpretation of gateway 9(a). The contentious issue here has been whether damage under the provision should be interpreted narrowly, such that the gateway requirement is met only when the claimant sustains in England harm ensuing directly from the defendant's wrongful conduct overseas; or, widely, so that indirect (and not merely direct) harm suffered by a claimant in England (such as the ongoing effects of the injury sustained overseas, pain, suffering, and loss of earnings) would satisfy the provision. For almost 20 years after the introduction of the provision in 1987,Footnote 2 courts favoured the narrow interpretation of damage.Footnote 3 But, in the mid-2000s, courts began to show a preference for a more expansive meaning of damage,Footnote 4 which soon took root as the main approach for construing gateway 9(a).Footnote 5 Academic opinion was also divided, with a larger group arguing that the provision should be read restrictively,Footnote 6 while others contended that it should be defined widely.Footnote 7 The Supreme Court's judgment in Brownlie II on the scope of gateway 9(a) was, therefore, eagerly awaited, for it promised to outline authoritatively the court's stance on one of the most contentious contemporary issues in English private international law.
In the end, in a four-to-one majority decision,Footnote 8 the Supreme Court endorsed the broader interpretation of gateway 9(a). Now, in essence, an English resident, who continues to suffer, in England, physical or financial damage arising from personal injuries sustained overseas, can sue the foreign-based defendant in England, notwithstanding that the claimant's residence is the only factor which links the action to the forum. However, the wide approach to interpreting the provision is qualified, as the judgment indicates that gateway 9(a) should be read narrowly in pure economic loss claims. On the foreign law question, the court held unanimously that, on the facts, the claimant could rely on the presumption that the applicable foreign law, in the absence of all the key elements for establishing a cause of action under it, should be deemed to be materially similar to English law.Footnote 9 Consequently, it was held that the claimant had shown that her claims had a reasonable prospect of success.
The Supreme Court's approach to proof of foreign law in the absence of adequate evidence is pragmatic and uncontroversial. It is to be welcomed as it contains clear guidelines on when, based on the presumption of similarity, English law is likely to apply in the place of the inadequately pleaded foreign law. However, the majority's decision on the scope of gateway 9(a) is questionable, and liable to have far-reaching implications for the English courts’ service-out jurisdiction in tort cases and beyond. The judgment endorses a significant expansion of the English courts’ service-out jurisdiction in personal injury claims, effectively rewrites gateway 9(a), and could, in the long run, diminish the importance of gateways in service-out cases altogether. It is argued that the Civil Procedure Rule Committee, which under the Civil Procedure Act 1997 is delegated with the task of devising the civil procedure rules (including the gateways), should act urgently to clarify and reinforce the gateways.
II. THE FACTS AND HISTORY OF THE LITIGATION
In January 2010, Lady Brownlie, her husband, Professor Sir Ian Brownlie QC, and close members of their family were on holiday in Egypt, staying at the Four Seasons Hotel Cairo, at Nile Plaza. Before the trip, Lady Brownlie had arranged for a chauffeur-driven tour of major tourist sights through the hotel's concierge service. While being driven in the hired car on the day of the tour, Lady Brownlie, Sir Ian, his daughter and two grandchildren were involved in a crash. Tragically, the accident led to the death of Sir Ian and his daughter, and serious injuries to Lady Brownlie and the two children. As this part proceeds to highlight, the 10-year-long legal battle that followed these events was not concerned with substantive issues. Rather, it has focused on determining whether Lady Brownlie could pursue her legal rights by bringing the claims before the courts in England.
A. Brownlie v Four Seasons Holdings Inc (Brownlie I)
In late 2012, Lady Brownlie commenced breach of contract and negligence proceedings against Four Seasons, the British Columbian holding company of the Four Seasons hotel group. In the contract claim, Lady Brownlie argued that she had purchased the fateful tour from Four Seasons, rendering it in breach of the implied contractual term to conduct the tour with reasonable care and skill. In the tort claim, she alleged that Four Seasons was vicariously liable for the driver's negligence which had led to the crash. In both actions, she sought damages in: (i) her own personal capacity; (ii) as the executrix for her late husband's estate;Footnote 10 and (iii) as her late husband's widow.Footnote 11
As Four Seasons had no presence in England, and had not submitted to the proceedings, Lady Brownlie's only route for litigating her claims in England was through the English courts’ service-out jurisdiction.Footnote 12 She had to meet three requirements in order to persuade the court to serve the claim form outside England.Footnote 13 First, Lady Brownlie had to show that the claim against Four Seasons had a reasonable prospect of success.Footnote 14 Second, she had to satisfy the court that the claim passed through at least one of the jurisdictional gateways under CPR PD 6B para 3.1. Third, by virtue of CPR r 6.37(3), Lady Brownlie had to establish that the English court was forum conveniens (or the proper forum for hearing the claim).
Lady Brownlie contended that as she had purchased the chauffeur-driven tour in England, the contract claim fell within gateway 6(a).Footnote 15 For the negligence claim, she argued that it passed through gateway 9(a). Lady Brownlie contended that damage for the purpose of gateway 9(a) should be interpreted widely to include indirect harm suffered by a claimant in England—such as the ongoing effects of the injury sustained overseas, pain, suffering, and loss of earnings. Based on this interpretation of damage, she argued that her claim fell within the provision. In reply, Four Seasons contended that damage should be interpreted narrowly, meaning that the claim would fit the gateway only when the claimant sustains direct harm in England ensuing from the defendant's tortious conduct abroad. It, therefore, submitted that the harm Lady Brownlie complained of did not satisfy gateway 9(a).
It was only in 2017, after the matter had reached the Supreme CourtFootnote 16 that it transpired that the hotel where Lady Brownlie and her family had stayed, and from which the tour was purchased, was actually owned and operated by FS Cairo (Nile Plaza), an Egyptian company, and not Four Seasons. This finding prompted the Supreme Court to conclude unanimously that Four Seasons was the wrong defendant. As such, Lady Brownlie had no reasonable prospect of success in her contract and tort claims against Four Seasons.Footnote 17 Consequently, whether Lady Brownlie's claims fitted within gateways 6(a) and 9(a) were no longer live issues in the appeal.Footnote 18 Nevertheless, in obiter remarks, the Supreme Court proceeded to examine the scope of gateway 9(a).
The question of whether the harm which Lady Brownlie complained of fitted gateway 9(a) had divided opinion at the earlier stages of the litigation.Footnote 19 The Justices of the Supreme Court, too, were divided on the matter. The majority preferred for it to be interpreted widely, holding that indirect (and not just direct) harm suffered by the claimant in England, due to the defendant's tortious conduct abroad, would suffice to satisfy the provision.Footnote 20 Based on this reading of the gateway, Lady Brownlie's tort claim fitted gateway 9(a). Conversely, the minority held that only direct damage sustained in England, following the defendant's wrongful conduct overseas, would trigger the gateway.Footnote 21
B. The Brownlie II Case
In 2018, shortly after the Supreme Court's judgment in Brownlie I, Lady Brownlie successfully replaced Four Seasons with FS Cairo as the new defendant, setting in train the litigation in Brownlie II. The debate concerning the interpretation of gateway 9(a) was revived and took centre stage in these proceedings. Predictably, Lady Brownlie drew on the dicta in the majority's judgment in Brownlie I, contending that the provision should be interpreted widely, thus encompassing the type of indirect harm which she had suffered in England for which she was seeking compensation. By contrast, and equally unsurprisingly, FS Cairo relied on the Court of Appeal's ruling and the obiter observations of Lord Sumption in Brownlie I in arguing that gateway 9(a) should be construed narrowly. Hence, it claimed that the damages sustained by Lady Brownlie in England fell outside the scope of the provision, since they were indirect ramifications of a tort committed overseas.
A further issue arose in Brownlie II regarding whether Lady Brownlie had established that her contract and tort claims against FS Cairo had a reasonable prospect of success, so as to enable her to obtain a service-out order. It was common ground that Egyptian law applied to both claims. The general approach in disputes before English courts which are governed by foreign law is that the relevant principles within it ‘must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence’.Footnote 22 FS Cairo contended that although Lady Brownlie had brought her allegations pursuant to Egyptian law, the principles underpinning her claims under that law had not been specified. Therefore, it argued that she had failed to show that her direct liability claims in tort or contract had reasonable prospects of success under Egyptian law.Footnote 23 In response, Lady Brownlie sought to rely on Rule 25(2) in Dicey, Morris & Collins which stated that ‘in the absence of satisfactory evidence of foreign law, the court will apply English law.’ She argued that, on the issues involved, Egyptian and English laws were materially similar. Because these claims had a reasonable prospect of success under English law, Lady Brownlie argued that she had satisfied this requirement for service on a defendant outside England.
At first instance, Nicol J found that Lady Brownlie could rely on Rule 25(2) in Dicey, Morris & Collins.Footnote 24 Accordingly, despite failing to outline adequately the bases under Egyptian law for her claims, his Lordship presumed Egyptian law to be similar to English law (the ‘presumption of similarity rule’), and held that Lady Brownlie had established that her claims had a reasonable prospect of success. On the scope of gateway 9(a), too, Nicol J accepted Lady Brownlie's submission, concluding that her claim engaged the provision.Footnote 25 With respect to the contract claim, his Lordship found that the contract with Nile Plaza had been made in England, because Lady Brownlie received the acceptance to her offer to purchase the tour there. As such, the contract claim engaged gateway 6(a).Footnote 26 Finally, Nicol J held that England was the proper forum for entertaining the claim.Footnote 27
Subsequently, FS Cairo sought permission to appeal to the Court of Appeal against all these findings. Ultimately, though, it was able to appeal Nicol J's decision on the scope of gateway 9(a), and the ruling that Lady Brownlie's claim had a reasonable prospect of success based on the application of the presumption of similarity rule. By a majority, the Court of Appeal upheld Nicol J's decision on both grounds.Footnote 28 Subsequently, FS Cairo appealed the Court of Appeal's decision to the Supreme Court.
III. THE SUPREME COURT'S DECISION AND REASONING IN BROWNLIE II
A. The Foreign Law Question
The Supreme Court arrived at a unanimous verdict on the foreign law question. Lord Leggatt outlined the court's reasoning. The interpretation of Rule 25(2) in Dicey, Morris & Collins was central to the judgment. After examining the evolution of Rule 25(2), Lord Leggatt stated that it was unclear whether it ‘involves “the default application of a rule of English law” or … a presumption that, in the absence of sufficient proof, “foreign law will be taken to be the same as English law”’.Footnote 29 Lord Leggatt regarded the ‘default’ and the ‘presumption of similarity’ rules as distinct concepts.Footnote 30 Based on the default rule, English (as opposed to the foreign) law would apply, if neither party has pleaded that foreign law governs the dispute.Footnote 31 As for the presumption of similarity, Lord Leggatt deemed it as ‘a rule of evidence concerned with what the content of foreign law should be taken to be’,Footnote 32 which applies where foreign law is accepted as being applicable, but its content has not been spelt out.Footnote 33 On the facts, because Lady Brownlie's claims in contract and tort had been advanced pursuant to Egyptian law, English law could not be applied by default.
The answer to the foreign law question, therefore, turned on whether Egyptian law could be presumed to be similar to English law. While acknowledging the criticisms of the presumption of similarity rule as ‘a legal fiction which should have no place in modern law’, and one which is ‘unfair to defendants because its effect is to reverse the burden of proof’,Footnote 34 Lord Leggatt nevertheless maintained that it should continue to apply under English law.Footnote 35 Consequently, based on the presumption of similarity rule, English law could apply to a dispute governed by a foreign law where it is ‘reasonable to expect that … any differences between the two systems are unlikely to lead to a different substantive outcome’.Footnote 36 Lord Leggatt then examined several cases in England and other common law jurisdictions in which the application of the presumption of similarity rule was in contention.Footnote 37 His Lordship found that whether English and foreign laws are presumed to be similar under Rule 25(2) was a fact-specific enquiry.Footnote 38 Yet, he proceeded to outline a list of considerations, drawn from the cases, which can assist in determining whether foreign law can be taken to be the same as English law on the issues involved.Footnote 39
In the final analysis, Lord Leggatt observed that Nicol J's finding at first instance on the foreign law issue should stand:
[I]t 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.Footnote 40
Nevertheless, Lord Leggatt upheld the Court of Appeal's direction in Brownlie II, requiring Lady Brownlie to serve revised particulars of claim which plead the content of Egyptian law, including the relevant principles underlying her allegations in the contract and tort claims.Footnote 41
B. Scope of Gateway 9(a)
The Justices of the Supreme Court were divided (four to one) on how to interpret gateway 9(a). Lord Lloyd-Jones expressed the majority view, which favoured a wide interpretation of the provision. In many respects, Lord Lloyd-Jones's judgment was a critique of Lord Sumption's minority ruling in Brownlie I, with his Lordship finding persuasive similar considerations that had led the majority in Brownlie I to ascribe a broad scope to the gateway.
To begin with, Lord Lloyd-Jones found Lord Sumption's interpretation of damage to be ‘unduly restrictive’.Footnote 42 Instead, his Lordship accepted Lady Brownlie's submission that damage should be given its ordinary and natural meaning,Footnote 43 thus encompassing harm suffered in England that was an indirect consequence of the foreign tort. His Lordship also disagreedFootnote 44 with Lord Sumption's reasoning in Brownlie I, where Lord Sumption had stated that gateway 9(a) ‘was deliberately drafted so as to assimilate the tests for asserting jurisdiction over persons domiciled in an EU member state and persons domiciled elsewhere’,Footnote 45 and, therefore, had to be interpreted consistently with Article 7(2) of the Brussels Ia Regulation.Footnote 46 In Lord Lloyd-Jones's view, assumption of jurisdiction by means of service out and assumption of jurisdiction under the Brussels regime were fundamentally different, meaning that there was ‘no sound basis for seeking to assimilate the limited, exceptional jurisdiction under [Article 7(2) of Brussels Ia Regulation] with the tort gateway in our domestic system’.Footnote 47 Finally, Lord Lloyd-Jones disagreed with Lord Sumption's remarks in Brownlie I,Footnote 48 that a broad interpretation of gateway 9(a) would undermine the gateways.Footnote 49 In Lord Lloyd-Jones's view there was ‘no need to adopt an unduly restrictive reading of the domestic gateways’ because whether an English court would assert jurisdiction over a foreign-based defendant ultimately depended on it being forum conveniens.Footnote 50
Lord Lloyd-Jones assessed two diverging streams of precedent on the scope of gateway 9(a). First, his Lordship examined several first instance personal injury cases which had been heard by English courts in the early 2000s where gateway 9(a) received a broad meaning.Footnote 51 Moreover, he drew on cases in AustraliaFootnote 52 and Hong Kong,Footnote 53 where equivalent provisions to the gateway had been accorded a broad scope.Footnote 54 Nevertheless, Lord Lloyd-Jones also discussed other cases, including three Court of Appeal decisions, concerning torts resulting in pure economic loss,Footnote 55 where courts had construed damage restrictively.Footnote 56 Faced with these diverging judicial pronouncements, his Lordship decided to distinguish torts resulting in personal injury from those causing pure economic loss for the purpose of gateway 9(a). Consequently, in pure economic loss claims, only direct damage sustained in England in the form of economic loss would engage the provision.Footnote 57 In personal injury claims, such as Brownlie II, his Lordship held that damage should receive its ‘ordinary and natural meaning’, with there being ‘no need to limit its scope to direct as opposed to indirect damage’.Footnote 58 Lord Lloyd-Jones proceeded to conclude that Lady Brownlie's three tort claims fell within the scope of gateway 9(a). As such, FS Cairo's appeal was dismissed.Footnote 59
Unlike Lord Lloyd-Jones, Lord Leggatt, who was the only dissenting Justice, preferred the narrow interpretation of gateway 9(a). On certain matters, though, his Lordship was in agreement with Lord Lloyd-Jones. For instance, for much the same reasons as Lord Lloyd-Jones, Lord Leggatt considered that the interpretation of Article 7(2) of the Brussels Ia Regulation should have no bearing on the construction of gateway 9(a).Footnote 60 Moreover, he agreed with Lord Lloyd-Jones that it was not necessarily damage that completes a cause of action in tort that would trigger the provision.Footnote 61 Finally, similar to Lord Lloyd-Jones, Lord Leggatt dismissedFootnote 62 the suggestion that gateway 9(a) has the same scope as Article 4(1) of Rome II Regulation.Footnote 63 Where his Lordship's path diverged from Lord Lloyd-Jones's was that, fundamentally, Lord Leggatt preferred a purposive interpretation of gateway 9(a). While Lord Leggatt accepted that ‘the word “damage” is apt to refer to any form of harm whether physical, psychological or economic’, he was unpersuaded that the scope of the provision could be ‘ascertained simply by observing (correctly) that the word “damage” as a matter of ordinary language encompasses all these different forms of harm’.Footnote 64 Rather, Lord Leggatt focused on the purpose for which the gateways exist as a basis for their interpretation.Footnote 65
His Lordship noted that gateways signify points of connection ‘between a person situated abroad or an act done by that person … and [England] … which is capable of providing a sufficient basis for the assertion by the English courts of jurisdiction over that person’.Footnote 66 In Lord Leggatt's view:
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.Footnote 67
His Lordship observed that, ‘[a] test met by the occurrence in England and Wales of any harm resulting indirectly from a wrong committed elsewhere singularly fails to achieve’ the purpose of gateways, as it represents ‘an irrational and almost wholly ineffectual threshold requirement’.Footnote 68 Lord Leggatt also stated that interpreting the gateways widely runs the risk of diluting the overriding objectives within the Civil Procedure Rules, set out under CPR, r 1.1(1).Footnote 69
Most significantly, Lord Leggatt disagreed with Lord Lloyd-Jones's view that gateway 9(a) could have an expansive scope because the English courts’ decision whether to summon the foreign-based defendant, in the end, hinges on England being forum conveniens. His Lordship made the following remarks in support of his viewpoint:
[S]uch 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 … 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. … 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. … To elide the two questions, in my view, involves a category error.Footnote 70
Lord Leggatt concluded that gateway 9(a) should be interpreted ‘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’.Footnote 71 Accordingly, his Lordship favoured a restrictive reading of the provision, and held that Lady Brownlie's tort claim fell outside its ambit.
IV. ANALYSIS
The Supreme Court's judgment in Brownlie II on the proof of foreign law in the absence of adequate evidence is largely premised on long-standing authorities in England and across the common law world. Nevertheless, the court's pronouncements were not limited to restating the law as outlined in those cases. Instead, the Supreme Court took the opportunity to address certain ambiguities in the law. In this respect, it distinguished between the default and the presumption of similarity rules, thus seeking to tackle the confusion generated by the interchangeable application of these rules in the case law when applying English law (as the law of the forum) in the place of the applicable foreign law.
More important, after emphasising that the presumption of similarity rule does not apply based on hard-and-fast rules, the court supplied clear guidelines to help courts to determine whether English law could be taken to be similar to the governing foreign law. Hence, this aspect of the Supreme Court's judgment is to be welcomed. In practical terms, the judgment enables the parties to deploy tactical pleading. A claimant who seeks to summon a foreign-based defendant could, for strategic reasons, choose not to plead the specifics of the applicable foreign law and, instead, rely on the presumption of similarity rule in establishing that the claim has a reasonable prospect of success. It is then for the defendant to adduce evidence of the relevant foreign law to show that the claim has no real prospect of success.
While the Supreme Court's pronouncements on the foreign law question are mostly uncontroversial, the same cannot be said for the majority's ruling on the scope of gateway 9(a). Indeed, its verdict on this matter is liable to have substantial immediate and long-term ramifications for the exercise of the service-out jurisdiction in England. There are at least three grounds for questioning the majority's decision.
First, it endorses a marked expansion in the English courts’ service-out jurisdiction in personal injury claims. Today, a claimant's mere residence in England is, in practice, sufficient to afford the court jurisdiction to summon the foreign-based defendant, where the claimant continues to suffer in England damage arising from the defendant's infliction of personal injuries overseas. It is true that the claimant must also establish that England is forum conveniens (ie, the proper forum) for the proceedings to be served outside England. It is also the case that courts in England have stated that, in cases concerning a tort allegedly committed within a certain jurisdiction, ‘it is not easy to imagine what other facts could displace the conclusion that the Courts of that jurisdiction are the natural forum’.Footnote 72 However, more recent judgments suggest that claimants are unlikely to find it especially onerous to show that England is forum conveniens, despite the fact that the tort in question has been committed elsewhere. In all the first instance, personal injury decisions which Lord Lloyd-Jones approved in his judgment, where damage had been defined broadly, England was ultimately found to be the proper forum.Footnote 73 These cases had all been initiated by the immediate victims or on their behalf. The life-changing nature of the injuries, combined with other logistical difficulties facing the claimants, be they the immediate victims or their next of kin, make it much more likely for there to be a finding that England is forum conveniens.Footnote 74
This situation exists, even though the only factor connecting the defendants with England is that the alleged victims of their torts reside there. It is, therefore, difficult to accept Lord Lloyd-Jones's reasoning that the forum conveniens requirement is, by itself, adequate to protect foreign-based defendants with little (or no) meaningful connection with England from being subjected to litigation in England due to the broadening of the scope of gateway 9(a).Footnote 75 Those accused of committing torts that are sufficiently serious to have continuing physical or financial effect on the claimants after their return to England can now expect to face proceedings in England, regardless that their only connection with England is through the alleged victim's residence there.
This state of affairs would appeal to English victims of accidents overseas, and, no doubt, prove lucrative to their legal representatives in England. Nevertheless, it is hardly a satisfactory means of asserting jurisdiction. In policy terms, the key issue is whether there is a sufficient connection between the defendant and England to justify the English court asserting jurisdiction. Traditionally, that connection has been established through the defendant's consent to the English proceedings, presence or conduct in England. However much one might sympathise with victims of personal injury torts committed overseas, the claimants’ indirect injury in England is unpredictable and unforeseeable by the defendants. Consequently, the connection between the dispute and England in such cases is not sufficiently robust to warrant the assumption of jurisdiction by means of service out. It is argued that the narrow conception of damage, favoured by Lord Leggatt, would have helped to ensure that proceedings are only served on foreign-based defendants where the claim has a much stronger connection with England.
The second reason why the majority's judgment in Brownlie II is questionable is because it has effectively redrafted gateway 9(a) by affording a wider meaning to damage in personal injury claims, and a more limited scope in pure economic loss ones. As highlighted earlier, Lord Lloyd-Jones's ruling indicates that, in relation to personal injury torts, the provision is engaged irrespective of whether the damage sustained in England was the direct consequence of the defendant's commission of a tort outside England. However, in economic torts, a claim based on indirect damage suffered in England will not pass through gateway 9(a). This is an unorthodox approach to interpreting the provision, not least because no precedent in support of it was proffered by Lord Lloyd-Jones. It also seems unconvincing, particularly because, as Lord Leggatt observed, nothing ‘in either the language or the purpose’ of gateway 9(a) warrants for it to be construed expansively in relation to damage resulting from one category of torts, and narrowly, vis-à-vis another.Footnote 76 It would have been much more defensible to interpret the provision restrictively, notwithstanding the type of tort claim giving rise to the damage in question.
Third, the majority's ruling is liable to diminish the overall importance of gateways in the long run. It is true that the continued utility of gateways in service-out cases was not in dispute in Brownlie I or Brownlie II. Indeed, Lord Sumption, in Brownlie I,Footnote 77 and Lord Leggatt, in Brownlie II,Footnote 78 defended the gateways vigorously. Nevertheless, as stated earlier, the majority in Brownlie II decided to interpret gateway 9(a) widely in part because the decision to serve proceedings on foreign-based defendants, ultimately, hinges on the claimant showing that England is forum conveniens. This reasoning could well be utilised to argue that service-out jurisdiction in general should also be exercised based entirely on England being the proper forum for entertaining the dispute. This approach to rethinking service-out law in England has already been advanced in influential academic and practitioner textbooks in recent years.Footnote 79 However, such a development would be undesirable, and should be avoided.Footnote 80 It would make the service-out jurisdiction in England overly claimant-friendly, as it would remove an important obstacle in the way of claimants who seek to obtain leave to serve proceedings outside England. Moreover, basing the service-out decision solely on England being the proper forum would lead to even greater instances of protracted and unpredictable litigation about whether the court should assert service-out jurisdiction.Footnote 81 Therefore, the majority's decision in Brownlie II to widen the scope of gateway 9(a), by relying on the existence of the forum conveniens requirement as a backstop, does not augur well for the future of service-out jurisdiction in England. It is argued that Lord Leggatt's ruling to treat the scope of gateways as being wholly independent from the forum conveniens enquiry represents a more defensible approach.
V. CONCLUSION
In Brownlie II, the UK Supreme Court faced two important questions. Its unanimous response to the question concerning the proof of foreign law is mostly uncontroversial and pragmatic. However, the court's ruling on the interpretation of gateway 9(a) provides an answer, albeit an unsatisfactory one, to arguably the most contentious private international law question in England of the past 20 years. The majority's decision to construe the provision widely is controversial, and, it is argued, leaves the law in an unappealing state. English courts now enjoy an expanded jurisdiction in service-out cases arising from personal injuries sustained outside England. In essence, an English resident, who continues to suffer, in England, physical or financial damage arising from personal injuries sustained overseas, can now pursue the foreign-based defendant in England, notwithstanding that the claimant's residence is the only factor which links the defendant to England. Additionally, by deciding to interpret damage broadly in personal injury claims, but restrictively in those involving pure economic loss, the majority has practically redrafted gateway 9(a). Finally, and more important, from the perspective of the future of service-out jurisdiction in England, the ruling could be used as a basis for diluting the role of the gateways in general, and premising the decision to summon foreign-based defendants wholly on England being the proper forum for hearing the dispute.
The decade-long legal dispute in Brownlie I and Brownlie II has been entirely concerned with ascertaining whether the substantive issues arising from the facts could be litigated before an English court. The fact that it has taken two appeals to the UK Supreme Court to have a verdict on the matter is scarcely acceptable. It might be tempting to think that this undesirable situation would be much less likely to arise if the gateways were abandoned altogether, and the decision to serve claim forms on defendants outside England premised solely on whether England is forum conveniens. That temptation should be resisted, however, as it is liable to create even greater long-term problems.Footnote 82 Instead, the Civil Procedure Rule Committee, which has been delegated with the task of devising the civil procedure rules (including the gateways) under the Civil Procedure Act 1997, should urgently revise the gateways. In doing so, it should strive to reword the gateways as clearly as possible, so as to minimise doubts surrounding their scope. Moreover, it should only include, as part of the gateways, provisions that point to meaningful connection between England and the dispute. It is only through a process of clarifying and reinforcing the gateways that the problems exposed by the litigation in Brownlie I and Brownlie II are likely to be mitigated in the future.
