Brownlie v Four Seasons Holding

The Court of Appeal applied the "Canada Trust" gloss to the question whether a claimant has a "good arguable case" to justify service out of the jurisdiction. It held that, on the material available and in the light of defective and evasive defendant evidence, there was a sufficiently arguable case that the booking contract for the excursion was concluded with the appellant and that the contract may have been made in England. The court also considered the application of the Rome II rules on the law applicable to non-contractual obligations and the meaning of where "damage occurs" for jurisdictional purposes. It concluded that consequential losses in England do not, as a matter of Rome II principle, found jurisdiction for the deceased's estate claim (LRMPA 1934) or the claimant's personal tort claim, but that the claimant's separate statutory dependency claim under the Fatal Accidents Act 1976 gave rise to damage within the jurisdiction and so a good arguable case exists for that cause of action.

Key legal principles:

• The Canada Trust gloss: at the permission stage the court must decide whether, on available material and without prejudicing trial, there is a "much better" or sufficiently strong arguable case to take jurisdiction.
• Rome II Article 4 should be read consistently with the Brussels Convention jurisprudence: the law of the country where the damage occurs applies and "damage" for jurisdictional purposes cannot be extended to include merely remote consequential losses.
• The Fatal Accidents Act 1976 cause of action is analytically distinct from the deceased's LRMPA 1934 estate claim and may give rise to jurisdiction in England where the dependency loss accrues here.

Factual background and procedural posture:

Lady Christine Brownlie (resident and citizen of the United Kingdom) was injured and her husband, Sir Ian Brownlie, was killed in a motor accident in Egypt while on an excursion organised by the concierge of the Four Seasons Hotel Cairo at Nile Plaza. Lady Brownlie commenced proceedings in England in contract and tort: (i) personal claim for her own injuries, (ii) a Fatal Accidents Act 1976 claim for loss as a dependent, and (iii) an estate claim under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of Sir Ian's estate. She obtained permission to serve the proceedings out of the jurisdiction on the appellant (a Canadian company) on a without-notice basis; the appellant applied to set that permission aside. Master Cook set aside the permission; Tugendhat J allowed Lady Brownlie's appeal; Four Seasons appealed to the Court of Appeal.

Nature of the relief sought:

• Permission to serve proceedings out of the jurisdiction on the appellant in Canada (claimant sought to maintain service out).

Issues framed by the court:

1. Whether there was a sufficiently good arguable case that the concierge contract for the excursion was with the appellant. (identity of contracting party)
2. Whether there was a sufficiently good arguable case that the contract was made in England. (place of contract — acceptance received in England)
3. Whether, for the tort claims, damage was "sustained" in England so as to justify service out under Practice Direction 6B paragraph 3.1(9)(a), in light of Rome II Article 4 and Article 15.

Court's reasoning and conclusions:

The Court of Appeal reiterated the Canada Trust gloss: in the interlocutory jurisdictional context the court must be satisfied, on available material, that there is a much better or sufficiently strong arguable case to take jurisdiction, without determining trial issues. The court criticised the appellant's defective witness evidence (lack of sources, present-tense-only statements, and otherwise evasive responses) and was entitled to give it little weight. On the contract issues the brochure, correspondence and the appellant's reticence provided a sufficiently strong arguable case that the appellant was the contracting entity and that acceptance was communicated to England, so the judge was right to find a good arguable case for a contract made in England.

On the tort gateway, the court interpreted Rome II Article 4 consistently with the Brussels Convention jurisprudence and held that the tort gateway should not be extended so as to treat merely consequential losses in England as constituting the place where damage occurs. Accordingly the claimant's personal injury claim and the LRMPA 1934 estate claim did not show damage sustained in England (the accident and primary injury occurred in Egypt). However, the court treated the Fatal Accidents Act 1976 claim as analytically distinct: dependency is a separate, personal statutory cause of action and the dependency loss arose in England, so there was a good arguable case for jurisdiction and for English law to apply to that claim.

The court declined to refer questions to the Court of Justice of the European Union and summarised that it would dismiss the appellant's appeal on the contract point but allow the appeal insofar as it related to the personal and LRMPA 1934 tort claims, while upholding the claimant's position on the FAA76 dependency claim.

Appeal allowed in part. The Court of Appeal dismissed the appellant's challenge to the judge's finding that there was a good arguable case that the appellant was the contracting party and that the contract may have been made in England, rejecting the defendant's defective evidence and applying the Canada Trust gloss. However, applying Rome II consistently with the Brussels Convention jurisprudence, the court held that consequential losses in England do not establish that "damage occurs" there for the tort gateway so the appellant succeeded in relation to the claimant's personal tort claim and the LRMPA 1934 estate claim; by contrast the claimant's separate Fatal Accidents Act 1976 dependency claim did give rise to damage in England and remained within the court's jurisdiction.

Permission to serve out granted by Master Yoxall; set aside by Master Cook (31 July 2013); interlocutory appeal to Tugendhat J (Queen's Bench Division) who allowed the claimant's appeal [2014] EWHC 273 (QB); further appeal to the Court of Appeal resulting in this judgment [2015] EWCA Civ 665.