Damage—evidence—foreign law—jurisdiction—service out of the jurisdiction

The claimant was involved in an accident in Egypt. She had originally instituted proceedings in England against a Canadian company (“Holdings”), alleging that it was vicariously liable for the negligence of the driver of the car, which negligence had, as the claimant alleged, caused the accident. The claimant sought recovery for her own injuries. She also sued (i) as a dependent of her late husband, and (ii) as her husband’s executrix (both of which claims were governed by Egyptian law). Holdings challenged the jurisdiction of the English court on the basis that the claimant could show no real prospect of succeeding against it. That jurisdictional challenge reached the Supreme Court.2 While finding in favour of Holdings, a majority of the Supreme Court indicated obiter that the consequential damage which the claimant suffered in England could give the English court jurisdiction under PD6B, para.3.1(9)(a).

The case was then remitted to the High Court, where the claimant sought and obtained permission to serve an amended claim form and particulars on the defendant in Egypt, bringing against it claims in contract and in tort. Having appealed that decision unsuccessfully to the Court of Appeal, the defendant appealed again to the Supreme Court. The Supreme Court had to determine two issues:

(i) in relation to the claims in tort, whether the claimant had established that the jurisdictional gateway in PD6B, para.3.1(9)(a) was satisfied; and

(ii) whether the claimant had established that she had reasonable prospects of success in respect of her claims in contract and in tort.

Decision: Defendant’s appeal dismissed.

Held: With respect to the first issue, the word “damage” in PD6B, para.3.1(9) includes all the detriment, physical, financial and social which the claimant suffers as a result of the tortious conduct of the defendant. The claimant therefore established that the gateway was satisfied. On the second issue, there is a distinction to be drawn between, on the one hand, the “presumption of similarity” (which is a rule of evidence concerned with what the content of foreign law should be taken to be) and, on the other hand, the “default rule”