Service out of jurisdiction: UK Supreme Court cites Fong Chak Kwan in landmark cross-border case
On 20 October 2021, the UK Supreme Court delivered its judgment in FS Cairo (Nile Plaza) LLC v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC)  UKSC 45. In determining whether to grant service out of jurisdiction in the context of a personal injury claim, the UK Supreme Court held (by a 4:1 majority) that the word “damage” under the tort gateway in the relevant provision (equivalent to RHC O.11, r.1(1)(f) in Hong Kong) refers to actionable harm, direct or indirect, caused by the wrongful act alleged.
The UK Supreme Court found support from, among others, the Hong Kong case of Fong Chak Kwan v Ascentic Ltd  HKCFI 679, in which Anson Wong Yu Yat acted as sole advocate for the successful Plaintiff. On appeal by the Employees Compensation Assistance Fund Board, Paul Harris SC leading Anson Wong Yu Yat acted for the Plaintiff / Respondent in successfully resisting the appeal:  HKCA 1138.
The late Sir Ian Brownlie QC, a leading barrister and scholar specialising in public international law, died in a car accident while on holiday in Egypt in January 2010. The crash took place during a guided excursion booked by his wife, Lady Brownlie, through the Four Seasons Hotel Cairo. His daughter was also killed, and Lady Brownlie and her two grandchildren seriously injured.
Subsequently, Lady Brownlie brought claims in tort and contract in the UK High Court for damages for personal injury and losses suffered as a result of the accident. To sue FS Cairo, an Egyptian company, she sought the Court’s permission to serve her claim form out of the jurisdiction. And so began a nine-year legal battle which recently reached the Supreme Court for a second time.
Issue: the meaning of “damage sustained … within the jurisdiction” under the tort gateway
Under English law, Lady Brownlie must satisfy a three-stage test in order to serve her personal injury claim form out of jurisdiction:
• The claim falls within one of the “jurisdictional gateways” under the Civil Procedure Rules, Practice Direction 6B, of which paragraph 3.1(9)(a) requires the “damage” to be “sustained … within the jurisdiction”, i.e. the tort gateway;
• It has a reasonable prospect of success; and
• England and Wales is the proper place in which to bring the claim.
The central issue in this case relates to the proper interpretation of the word “damage” under the tort gateway at the first stage.
The UK Supreme Court (by a 4:1 majority) interpreted “damage” to mean significant damage, whether direct or indirect, sustained within the jurisdiction of England and Wales:
“… damage in this context is not confined to the element necessary to complete a cause of action but includes all the detriment, physical, financial and social which the claimant suffers as a result of the tortious conduct of the defendant.” (para 83, Judgment)
The Court found that the pain, suffering and physical injury were suffered sequentially, first in Egypt and then in England. Accordingly, her personal injury claim passes through the tort gateway.
Hong Kong caselaw: relevance of Fong Chak Kwan
In reaching its decision, the UK Supreme Court relied on various authorities from the UK and beyond, including the Hong Kong case of Fong Chak Kwan v Ascentic Ltd  HKCFI 679.
At paragraphs 67 and 68, Lord Lloyd-Jones observed:
“67. In Hong Kong, Order 11 of the Rules of the High Court provides, in terms identical to the pre-2000 English domestic gateway, that permission may be given to serve a writ out of the jurisdiction if “the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction”. The Hong Kong courts have followed Metall und Rohstoff in concluding that, in considering whether damage is sustained in Hong Kong, it is sufficient if some significant damage has been sustained there (Dynasty Line Ltd v Sukamto Sia  HKCA 198, para 33). In Fong Chak Kwan v Ascentic Ltd  HKCFI 679 the claimant had been seriously injured in an industrial accident while working at a site in Ningbo City, Mainland China. Ng J, after examining the authorities in great detail, followed the majority view in Brownlie I. In particular she concluded (at paras 255-260) that the claim was not founded on the mere fact that the claimant was resident in Hong Kong; in her view the claimant had incurred damage, albeit secondary or consequential damage, in Hong Kong. Furthermore, she considered that any concern that a wide interpretation of “damage” would confer a universal jurisdiction to entertain claims by local residents in respect of personal injuries suffered anywhere in the world, was sufficiently addressed by the discretion as to forum non conveniens.
68. These authorities strongly support the conclusion that in the present case damage was sustained within the jurisdiction within gateway 9(a).”
Fong Chak Kwan has important implications for accidents occurring outside Hong Kong in which Hong Kong residents are injured.
In that case, the Plaintiff is a Hong Kong permanent resident who suffered serious personal injuries during the course of his employment in Mainland China. He sought the Court’s leave to serve a concurrent writ of summons on a company in the USA, one of his employers.
The Court of First Instance granted leave based on three gateways in Order 11, rule 1 of the Rules of the High Court, Cap. 4A, including Gateway (F) which requires that “the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction”. The Court found that the Plaintiff sustained damage within Hong Kong. In so finding, Marlene Ng J, the Judge in charge of the Personal Injuries List of the High Court, held that “damage” includes “indirect” damage suffered as a result of a tort.
Dismissing the appeal by the Employees Compensation Assistance Fund Board, the Court of Appeal ruled upheld the learned Judge’s interpretation of the word “damage” under the tort gateway.
Significance of the Brownlie decision
The UK Supreme Court’s judgment provides useful clarification on the hurdle for any person who sustains injuries abroad to serve a tort claim out of the jurisdiction. However, a number of issues remain to be addressed, such as how the requirement of “damage sustained … within the jurisdiction” can be satisfied in less serious personal injury claims.
|Paul Harris SC
|Paul was called to the Hong Kong Bar in 1993 and the Bar of England and Wales in 1976. He took silk in 2006. Paul is the elected Chairman of the Hong Kong Bar Association for the year 2021. He practises in Hong Kong and in London, where he is a member of Doughty Street Chambers.
Recently, Paul’s article on the latest developments in anti-harassment injunctions was published in the January 2021 online edition of Hong Kong Lawyer.
Visit Paul’s profile for further details on his expertise.
|Anson Wong Yu Yat
|Anson was called to the Bar in 2015 and serves as a Member of the Committee on Intellectual Property and Committee on Competition Law of the Hong Kong Bar Association. He has developed a broad civil practice with an emphasis on public law, intellectual property litigations and competition law matters.
Find out more from Anson’s profile.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph (by Jeremy Bishop@Unsplash) which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.