Four Seasons v Brownlie – Jurisdiction
The Supreme Court handed down its Judgment on the case Four Season Holding Incorporated v Brownlie on 19 December 2017. This long running case concerns a tragic road traffic accident on 3 January 2010 in Egypt. Lady Brownlie booked a holiday (from England) to stay at the Four Seasons Hotel in Egypt. Before travelling to Egypt, she also called a concierge at the hotel and booked a safari tour in a hired chauffeur-driven car. On the tour, the chauffeur lost control of the vehicle and crashed. Lady Brownlie and her two children were seriously injured, and sadly her husband, Sir Ian Brownlie, was killed.
Lady Brownlie brought proceedings for three claims. Firstly, a claim for the personal injuries she suffered, secondly a claim as her husband’s executrix under the Law Reform Act 1934, and thirdly a dependency claim under the Fatal Accidents Act 1976. The Four Seasons is a Canadian-based company. Lady Brownlie applied for permission to serve her claim out of the jurisdiction which was initially granted by Master Yoxall but that order was subsequently set aside by Master Cook.
The case eventually reached the Court of Appeal in 2015 which struck out Lady Brownlie’s own claim for damages and her claim as executrix of her husband’s estate. This was on the basis that the damage was suffered in Egypt and the claims should have been brought there. The Court of Appeal distinguished Lady Brownlie’s dependency claim under the Fatal Accidents Act as they considered this damage had been be suffered in England and thus the English courts had jurisdiction. The dependency claim was allowed to proceed. The Four Seasons appealed that decision and Lady Brownlie cross-appealed the decision to strike out her other claims.
The Supreme Court heard the case in May and July 2017, and handed down Judgment on 19 December 2017. The Court considered the issue of permission to serve a claim outside the jurisdiction. The claimant had to show that the case falls within one of the jurisdictional gateways detailed in paragraph 3.1 of Practice Direction 6B of the Civil Procedure Rules. Lady Brownlie contended that she satisfied the gateway outlined in paragraph 3.1(6)(a) as the contract was made in England and therefore within jurisdiction. In addition, she contended that her own claim for damages and that on behalf of her husband’s estate satisfied the gateway at 3.1(9)(a) on the basis that her damage was sustained within the jurisdiction.
The claimant’s appeal eventually failed on the facts rather than on any point of law. Unusually, the Supreme Court allowed further evidence from the Four Seasons which confirmed that they did not actually own the hotel in Egypt. It was owned another company unrelated to them. Therefore, Lady Brownlie’s claims could not proceed as the Four Seasons was not the correct defendant and the English courts had no jurisdiction.
This finding meant that the Supreme Court did not have to consider in detail where the contract for the sale of the safari tour was made and more disappointingly did not offer definitive guidance on interpretation of the paragraph 3.1(9)(a) gateway. However, I assume understanding the importance of the point, the Supreme Court did go on to consider the issue although obviously any findings were strictly obiter, and should be treated with the appropriate caution.
The majority view from Lady Hale, Lord Wilson and Lord Clarke, was that the claimant would have been able to satisfy the paragraph 3.1(9)(a) gateway. Lady Hale found that there was a line of first instance decisions which in her view had correctly decided that consequential damage i.e. the ongoing suffering and effect of injuries back in the country of domicile, was sufficient to establish jurisdiction. She also went on to consider the definition of the term “damage” in the Civil Procedure Rules. She did not consider the authors of the gateway were intending to limit the term to just the initial damage suffered because of the negligent act and that damage could be suffered by the same person in more than one place.
Lady Hale did appreciate the risk of forum shopping but stated a robust interpretation of “forum conveniens” would avoid this.
Lord Sumption and Lord Hughes offered dissenting obiter views. Lord Sumption felt that the term “damage” was limited to the initial bodily injury and the authors of the gateway would have expressly stated if it were to include consequential loss. He considered that the interpretation offered by Lady Hale would confer jurisdiction in the great majority of cases in the country of the claimant’s residence and the this would contradict the purpose of the gateways.
It is unfortunate that the Lady Brownlie’s case failed on the facts and the Supreme Court was not able to offer a definitive Judgment. This issue will be tested again given the obiter comments. There is likely to be a case where a claimant has suffered an injury with ongoing consequences in a country where there is no appropriate redress for damages seeks to bring the claim in the country of their own domicile. This will issue will eventually need to be determined definitively.