Brownlie v Four Seasons Holdings Incorporated

On an application to serve proceedings out of the jurisdiction, the claimant must show a good arguable case within the relevant jurisdictional gateway, a serious issue to be tried on the merits, and that England and Wales is the proper forum. The court must avoid conducting a trial before trial, particularly where the evidence is incomplete or conflicting. In a telephone contract, the place of contracting is generally where acceptance is received. Where the identity of a contracting party is disputed, the court should begin with how the transaction reasonably appeared to the parties when it was made. A defendant’s failure to identify the source of hearsay evidence may substantially reduce its weight.

The claimant appealed against Master Cook’s order dated 31 July 2013, which declared that the English court had no jurisdiction and set aside permission to serve the proceedings on the defendant in Canada. The claim arose from a fatal road accident in Egypt during an excursion booked by telephone through the concierge of a Four Seasons hotel in Cairo.

The central issues were whether the claimant had a good arguable case that the defendant contracted to provide the excursion, whether the contract was made within the jurisdiction or governed by English law, whether the tort claims disclosed a serious issue to be tried, and whether England and Wales was the proper forum.

The appeal was allowed and the permission to serve the claim form on the defendant in Canada was restored.

1. The Master had impermissibly conducted a trial before trial. He had made factual findings about the identity of the contracting party despite defective and incomplete evidence. The applicable question was whether the claimant had a good arguable case, while avoiding a concluded view on matters requiring determination at trial.
2. The claimant had a strongly arguable case that the defendant was the contracting party. The brochure and surrounding circumstances indicated that the concierge acted for the international Four Seasons enterprise. No alternative management entity was identified, and the defendant’s evidence was defective, evasive and unsupported by identified sources. The court therefore attached negligible weight to it.
3. Applying the rule in Entores Limited v Miles Far East Corporation [1955] 2 QB 327, the contract was made in England if, as was most probable, the claimant made the offer and accepted the concierge’s proposal while in England. Either analysis was arguable, but the factors permitted the court to take jurisdiction.
4. The contract was not governed by English law. Under Article 4(1)(b) of Rome I, the law applicable to a services contract was the law of the country where the service provider had its habitual residence. The defendant’s case that this was not English law was sufficient for the issue then requiring determination.
5. The tort claims disclosed a serious issue to be tried and a real prospect of success. The applicable law was governed by Rome II, but it was unnecessary to determine conclusively which national law applied.
6. England and Wales was clearly the most appropriate forum. The principal issues were likely to concern the claimant’s injuries, dependency and special damages, with relevant evidence likely to be available in England. There was little indication that the accident itself or Egyptian law would generate substantial trial issues.
7. The claimant’s fresh evidence was refused under CPR r.52.11(2)(b), since it could have been obtained below and would probably not have influenced the result.

• High Court (Queen’s Bench Division): Master Cook declared that the court had no jurisdiction and set aside permission to serve out of the jurisdiction on 31 July 2013.
• High Court (Queen’s Bench Division): The appeal was allowed, and permission to serve the claim form on the defendant in Canada was restored.