The Supreme Court has held in the context of a personal injury claim (Lord Leggatt dissenting) that direct damage in the jurisdiction is not required in order for a claim to come within the tort jurisdictional gateway in the CPR, so that permission can be granted to serve the proceedings on a defendant outside the jurisdiction (subject to also establishing that there is a real issue to be tried and the English court is the appropriate forum): FS Cairo (Nile Plaza) LLC v Brownlie  UKSC 45.
It has been unclear for some time whether the common law test was the same as the test under the recast Brussels Regulation (and the Lugano Convention), where direct damage in the jurisdiction is a requirement, so this decision provides clarification.
Outside of the personal injury context, the mere fact there has been some financial loss incurred where the claimant is based may still be insufficient to come within the gateway, but it will be necessary to see how the principles laid down by this decision are applied in future cases.
In all cases a claimant will still have to prove that England is the appropriate forum for the claim, so even where the gateway is passed the court retains the power to prevent unsuitable cases proceeding before the English courts.
The Supreme Court also provided guidance on pleading and proving foreign law. There are two conceptually different rules: the “default rule”; and the “presumption of similarity” rule. The default rule treats English law as applicable when foreign law is not pleaded by any party. The presumption of similarity rule applies where a foreign law is pleaded as being applicable, but no detail is provided as to the content of that law. In those circumstances, the court may (in effect) apply English law if it is reasonable to expect that the foreign law is likely to be materially similar to English law on that issue.
Given the uncertainty over when a court will consider it reasonable to expect that a foreign law is materially similar to English law, the safer course is to obtain foreign law advice and expressly plead the content of that law. Continue reading