Brownlie II mini-series: (2) The tort gateway

This is the second blog in our new series on the Supreme Court’s recent decision in the Brownlie litigation.

For a discussion of the background and the key elements of the decision itself, have a look at Peter Hale’s excellent first blog in this series.

A reminder that the two issues for the Court to decide were the scope of the “tort gateway” under CPR 6BPD 3.1(9) and the proper approach to pleading and proving foreign law.

This blog post looks at the tort gateway decision in detail, with a focus on what its impact may be on future cross-border litigation.

The tort gateway decision

CPR 6BPD 3.1(9)(a) provides a gateway for actions in tort where “damage was sustained, or will be sustained, within the jurisdiction”.

The Defendant argued that the tort gateway only applied where initial or direct damage was sustained in England and Wales: in personal injury or fatal accident claims, it did not cover indirect consequences after the relevant accident.

The Supreme Court ruled by a majority (with the exception of Lord Leggatt) that the tort gateway did cover indirect damage. Lord Lloyd-Jones gave the majority’s judgment on this issue.

Lord Lloyd-Jones rejected the idea that the concept of “damage” for jurisdictional purposes shadowed the the idea of the damage completing a cause of action:

To my mind, this approach is unduly restrictive. We are concerned here not with the completion of a cause of action in tort, a matter of substantive law, but with the scope of a jurisdictional rule which is intended to identify the appropriate forum for the adjudication of the resulting claim.

The word had to be considered in its particular context, which concerned the establishing of a link between a tort and a particular place:

On the contrary, the word in its ordinary and natural meaning and when considered in the light of the purpose of the provision extends to the physical and financial damage caused by the wrongdoing, considerations which are apt to link a tort to the jurisdiction where such damage is suffered.

He rejected the idea that as a matter of history the English tort gateway had been intended to mirror the European jurisdictional rules found in the Brussels regime (which did distinguish between direct and indirect damage).

On the contrary, there were “fundamental differences between the two systems” which “would have made such an assimilation totally inappropriate.”

A key point of distinction was the availability in English law of the forum non conveniens “safety valve”:

Within our domestic system the function of determining whether this is the appropriate jurisdiction is not performed simply by the breadth of the gateway but in addition by the forum non conveniens discretion. There is, therefore, no sound basis for seeking to assimilate the limited, exceptional jurisdiction under article 5(3)/7(2) of the Brussels system with the tort gateway in our domestic system.

This approach was also supported by the “impressive and coherent line of authority” established by the lower courts and reviewed by Lady Hale in the earlier Supreme Court ruling in the Brownlie litigation.

The position is apparently different in pure economic loss cases (in which context I now expect an explosion of litigation led by our colleagues at the Commercial Bar):

I would certainly not disagree with the proposition, supported by the economic loss cases, that to hold that the mere fact of any economic loss, however remote, felt by a claimant where he or she lives or, if a corporation, where it has its business seat would be an unsatisfactory basis for the exercise of jurisdiction.

But, for personal injury cases, it is straightforward:

In a case of personal injury or wrongful death “damage” within gateway 9(a) extends, both in its natural and ordinary meaning and on a purposive reading, to the actionable harm caused by the tortious act, including all the bodily and consequential financial effects which the claimant suffers.

There would be no scope for distinguishing between direct and indirect effects:

In this context it is neither necessary nor appropriate to seek to limit the scope of the provision by a restrictive reading or by attempting to distinguish between direct and indirect effects, a distinction which itself can give rise to great difficulty and uncertainty.

Cases involving injuries with continuing effects which are felt in England will therefore generally pass through the gateway:

So far as the first head is concerned, the pain, suffering and physical injury were suffered sequentially, first in Egypt and then in England. As Lady Hale observed in Brownlie I (at para 54), if I am seriously injured in a road accident, the pain, suffering and loss of amenity which I suffer are all part of the same injury and in cases of permanent disability will be with me wherever I am. The damage is in a very real sense sustained in the jurisdiction.

The same is apparently true for bereavement and loss of dependency suffered by the family once they return to England:

This is equally true of the second and third heads of claim. The injury to Sir Ian’s estate and the claimant’s bereavement and loss of dependency can properly be regarded as sustained in this jurisdiction.

What kinds of effects does the gateway cover?

Lord Lloyd-Jones mentioned “cases of permanent disability” specifically. Is the majority’s approach confined to such cases?

The answer to that seems to be a fairly clear “no”. The majority said that their reasoning covered “all the bodily and consequential financial effects which the claimant suffers” and not only permanent effects.

Lord Leggatt actually gave the best summary of the breadth of the majority’s reasoning when explaining why he disagreed with it:

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.

As he pointed out, it would essentially cover any English tourist suffering injuries in a foreign jurisdiction with consequential effects felt in 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.

A claimant would not even need to show that she was resident in England in order to satisfy the majority’s interpretation of the gateway:

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.

Will any continuing effects do?

Is there some lower threshold below which the tort gateway will not be triggered even on this very expansive reading?

What about a person who returns to England with a simple broken arm managed only with conservative treatment? Or what about a sprain (both examples are given in an article by Kieran Mitchell and Jasminka O’Hora of DAC Beachcroft)?

Or what about a person who has no functional limitations but incurs the cost of over-the-counter painkillers (i.e. the “cost of medical treatment”) for a couple of weeks after returning to England?

Or what about a victim of a car accident who makes a full recovery from his physical injuries but still experiences lingering psychological disturbance (“travel anxiety”) for a few weeks?

The point of these examples is that I can foresee possible arguments that some low-level issues are so “de minimis” that they do not qualify as “actionable harm” or “damage” within the meaning of the gateway at all.

Craig Evans of Clyde & Co suggests that this issue will generate “swathes of satellite litigation that will test the new boundaries” and that “Defendants brought to England & Wales would be sensible to consider the jurisdictional challenge on any case that is not clear and obvious to the significant extent of the damage suffered by the claimant in this jurisdiction.”

The response will presumably be along these lines:

  • Nowhere in the majority’s judgment is there reference to a lower threshold; on the contrary, Lord Lloyd-Jones specifically said that the gateway covers “all the bodily and consequential financial effects which the claimant suffers”.
  • There is no need to put in place a control mechanism for low-level claims because they are properly policed by the court applying the forum non conveniens test.

Will judges be happy policing jurisdiction in minor and moderate injuries cases via the expensive and time-consuming mechanism of a proper forum dispute? Would their unease at doing so even matter if it is the inescapable logic of the majority’s reasoning?

The question of how the majority’s ruling can be reconciled with the overriding objective’s call for efficiency and the saving of costs comes most sharply into focus in this context. Lord Leggatt made the point in relation to much more serious injuries:

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 … If an illustration is needed, the present case provides a dismal example.

I note in passing that the Supreme Court’s decision has prompted the same Professor Dickinson to renew calls (on Twitter) for the wholesale replacement of the service gateways with a new statutory jurisdiction regime: “We should not be left to flounder with forum conveniens as the sole determinant of jurisdiction.”

All eyes on “forum non conveniens”

The forum non conveniens test therefore assumes huge practical importance in filtering out injury claims that should not be brought before the courts of England and Wales.

Lord Lloyd emphasised that its scope extended beyond the “practicalities of litigation” to the “suitability or appropriateness of the relevant jurisdiction”:

While it is correct that practical issues can feature large in the exercise of the discretion, the discretion is not so limited.

He tried to assuage the central fears that loading the question onto the proper forum test would generate uncertainty:

In addition – and this is a point to which I attach particular importance – the forum non conveniens principle is not a mere general discretion, the application of which may vary according to the differing subjective views of different judges creating a danger of legal uncertainty. On the contrary, the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner.

In his conclusion, Lord Lloyd-Jones again emphasised his suggestion that the broad approach to the tort gateway was tempered by the proper application of the forum non conveniens test:

The wider reading of damage within the meaning of the tort gateway, which I favour, does not confer on all claimants in personal injury cases a right to bring proceedings in the jurisdiction of their residence. The courts will be astute in ascertaining whether the dispute has its closest connection with this jurisdiction and the principle of forum non conveniens will provide a robust and effective mechanism for ensuring that claims which do not have their closest connection with this jurisdiction will not be accepted here.

New scope for forum arguments

Lord Leggatt completely disagreed with loading the inquiry onto the question of the proper forum. It was a different test answering a different question:

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.

But he also made the core point that Lord Lloyd-Jones was surely wrong to be so confident that shifting the entire focus onto an open-ended evaluative exercise would not generate uncertainty:

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.

This uncertainty has been multiplied across a whole new range of cases by the removal of the rigid jurisdictional framework formerly set by the European Brussels-Lugano regime.

Although it is true that the door is now ajar to deserving claimants where it may have been shut, the ones who will principally benefit from this shifting of focus will in practice be the lawyers litigating cross-border claims:

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.

How will judges actually decide proper forum disputes in injury cases?

The question of how judges will approach future proper forum disputes assumes monumental importance for cross-border injury practitioners.

Lord Leggatt for his part expressed concern that English judges would be inclined by “human nature” to resolve forum disputes in favour of the seriously injured claimant:

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.

The lesson from the line of lower court forum decisions was that “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.”

Was Lord Leggatt right about this? If so, what can defendants do to protect their position? What do the cases show us are the key factors considered by the courts in proper forum disputes in injury cases and how can litigants address these factors in the most persuasive way?

We are going to take a look at these important issues in a bonus blog later in this series.

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