Lady Brownlie sought to sue a Canadian Four Seasons holding company in England for deaths and injuries caused by a car crash in Egypt during an excursion booked through the Cairo hotel. The Supreme Court held that the company was not a proper defendant, so the English court had no jurisdiction over the claims against it. The justices disagreed, in observations that were not necessary to the result, about whether later consequences felt in England could amount to “damage” sustained here for a tort committed abroad.
The accident and the claims
Lady Brownlie booked a chauffeur-driven excursion by telephoning the Cairo hotel from England. The vehicle crashed in Egypt, killing her husband, Sir Ian Brownlie, and his daughter, and injuring Lady Brownlie and other passengers.
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Lady Brownlie claimed damages for her own injuries, damages under the Law Reform (Miscellaneous Provisions) Act 1934 as Sir Ian’s executrix, and damages for bereavement and loss of dependency under the Fatal Accidents Act 1976 as his widow. She sued Four Seasons Holdings Incorporated, a British Columbia company and the holding company of the Four Seasons group, together with an Egyptian company identified as the owner of the hotel building. The claim was not pursued against the Egyptian company. The appeal concerned only the holding company’s challenge to permission to serve the claim out of the jurisdiction.
The conditions for service out
Permission required a claim within a jurisdictional gateway in CPR Practice Direction 6B, a reasonable prospect of success, and England and Wales being the proper place for the claim. The last condition was accepted if the first two were met. Lady Brownlie relied on the contract having been made within the jurisdiction and, for the tort claims, on damage having been sustained within the jurisdiction. The holding company said that it was not the contracting party, that the relevant damage was not sustained in England, and that there was no reasonable prospect of success. Any relevant contract was accepted to be governed by Egyptian law.
The standard of proof
Lord Sumption, with whom Lord Hughes agreed, held that a jurisdictional gateway must be established by a good arguable case. The claimant must provide a plausible evidential basis. Where the available material permits a reliable view, the court should take it; where the limits of an interlocutory hearing prevent that, a plausible though contested basis may suffice. A reasonable prospect of success is a lower requirement, corresponding to a serious issue to be tried.
The holding company was not the right defendant
The group’s structure made the contracting party difficult to identify. After earlier evidence was found unsatisfactory, the Supreme Court invited fuller evidence. That evidence showed that the defendant was a non-trading holding company. It neither owned nor operated the Cairo hotel. The hotel was owned by the Egyptian company, which had no corporate relationship with any Four Seasons company. A Dutch subsidiary had agreed to operate the hotel, and an Egyptian subsidiary had assumed the operator’s obligations. Other subsidiaries supplied services and licensed trade marks.
There was no realistic prospect of establishing that Holdings had contracted with Lady Brownlie or was responsible for the driver. That failure was enough to dispose of the proceedings against this defendant. It removed the need to decide which effects of an overseas injury could satisfy the tort gateway.
Where a telephone contract is made
Because the holding company was not a party, the place of contracting did not need to be decided. Lord Sumption nevertheless described the existing telephone-contract test, based on who spoke the words of acceptance and where the other person was, as artificial when used to found jurisdiction, and suggested that the Rules Committee might reconsider the gateway. Lady Hale said that this was not the occasion to doubt the contractual rule, but that the Rules Committee could consider a broader jurisdictional formulation.
Disagreement about damage in tort
The meaning of damage in the tort gateway did not have to be decided. Lord Sumption said that, even if the holding company had operated the hotel, he would have refused jurisdiction over the tort claims. The Fatal Accidents Act claim had no prospect of success because that Act operates only as part of English law, whereas Egyptian law governed the driver’s negligence. On personal injury, he considered that damage means the direct injury to the protected interest in bodily integrity, sustained in Egypt at the time of the accident. Medical costs, pain, suffering and loss of amenity later experienced in England measure or follow that damage; they are not themselves damage sustained in England. He relied on the character of the tort, the need for a substantial rather than casual connection with England, and the Court of Justice’s approach to the corresponding European jurisdiction provision, which the English gateway had been broadened to reflect.
Lady Hale preferred the ordinary meaning of damage, which could include physical, financial and social consequences suffered in England. Lord Wilson and Lord Clarke agreed with that broader reading. The requirement that England be the proper place for the claim could exclude cases with only a tenuous connection. All agreed that these observations were unnecessary to dispose of the claim against Holdings.
The hotel operator was substituted in the later proceedings. In FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45, the Court decided whether the claims against that operator could proceed in England.
Verdict: The Court unanimously allowed Holdings’ appeal. The English court had no jurisdiction to try these claims against it. No order was necessary on Lady Brownlie’s cross-appeal. Other consequential matters went back to the High Court, where she could apply to substitute or join another defendant.
Source: Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80
