Pike & Anor v The Indian Hotels Company Ltd

For jurisdiction under CPR 6.36 and Practice Direction 6B paragraph 3.1(9)(a), “damage” includes physical and economic harm, whether direct or indirect. The court must then decide whether England and Wales is the proper place for the claim.

Under the Spiliada principles, a stay may be refused where substantial justice cannot be obtained in the natural foreign forum. Delay, inability to fund proceedings, the claimants’ medical circumstances, witness availability and the practical conduct of the trial may together demonstrate a denial of justice. A defendant’s undertaking to assist with costs or expedition does not necessarily remove that risk.

The claimants, British guests at the Taj Mahal Palace Hotel in Mumbai during the 2008 terrorist attacks, brought claims in contract and tort against the Indian hotel operator. The first claimant suffered paraplegic injuries after attempting to escape through a window; the second claimant alleged continuing psychiatric injury.

The defendant challenged jurisdiction, sought to set aside an extension of time for service out of the jurisdiction, and alternatively sought a stay in favour of India. The parties accepted that India was the natural forum and that Indian law would apply. The central issues were whether indirect damage sustained in England could satisfy Practice Direction 6B paragraph 3.1(9)(a), whether the extension of time should stand, and whether substantial justice could be obtained in India.

1. Jurisdiction. The defendant conceded that there was a serious issue to be tried. The remaining question was whether the claimants had a good arguable case that damage was sustained within the jurisdiction. Following Booth v Phillips, [2004] EWHC 1437 (Comm), Cooley v Ramsey, [2008] EWHC 129 (QB), Wink v Croatio Osiguranje D.D., [2013] EWHC 1118 (QB), and Stylianou v Toyoshima, [2013] EWHC 2188 (QB), “damage” in paragraph 3.1(9)(a) bears its ordinary meaning and includes indirect physical and economic harm. The European jurisdictional rules did not require a narrower construction because the CPR scheme for non-regulation states retained a discretionary forum conveniens safeguard.
2. Extension of time. The application to set aside the extension was refused. Under Collier v Williams, [2006] EWCA Civ 20, the critical inquiry was the strength of the reason for failing to serve in time. The claimants’ solicitors had been actively investigating liability, funding, insurance, Indian proceedings and service difficulties. Those matters supplied good reasons for the delay.
3. Forum conveniens. India was the natural forum, but the claimants proved that substantial justice would not be obtained there. The likely delay was 15 to 20 years, expedition was no more than a possibility, and the claimants could not realistically fund Indian litigation involving expert evidence and experienced lawyers. The first claimant’s disability and the deterioration of witness recollection reinforced the conclusion.
4. The defendant’s undertakings concerning limitation, costs and cooperation did not overcome the denial-of-justice conclusion. A stay was therefore refused and the English proceedings were permitted to continue.