Brownlie v Four Seasons Holdings Incorporated

At the jurisdiction stage, a claimant must show a good arguable case: more than a merely arguable case, but less than proof on the balance of probabilities. The court assesses relative strength and evidential quality on the available material while avoiding a mini-trial. For a telephone contract, formation ordinarily occurs where acceptance is received. Under Rome II, the tort gateway concerns the place of direct injury, not consequential financial loss suffered elsewhere. A statutory dependency claim is distinct from the deceased’s estate claim, so the dependent’s loss may be sustained in England even where the fatal accident occurred abroad. Without evidence of foreign law, the court may apply the presumption that it is the same as English law.

Lady Brownlie claimed damages in contract and tort after being injured and widowed in a motor accident during an excursion arranged through a Four Seasons hotel in Egypt. She obtained permission to serve the Canadian appellant outside the jurisdiction. Master Cook set that permission aside. Tugendhat J allowed her appeal in [2014] EWHC 273 (QB), finding a sufficiently arguable case concerning the contracting party, the place of contract formation and damage sustained in England.

The appellant appealed. The central questions were whether the contract claims satisfied the contractual gateways and whether the personal injury, estate and dependency tort claims satisfied the tort gateway.

1. Disposition. The appeal was allowed in part. The contract claim and the claim under the Fatal Accidents Act 1976 remained within the jurisdiction. The personal injury claim and the claim under the Law Reform (Miscellaneous Provisions) Act 1934 did not.
2. Good arguable case. The Canada Trust gloss requires more than an arguable case. The claimant must have the much better argument on the available material and must meet an acceptable standard of evidential quality. The court must avoid deciding disputed facts or conducting a trial. The conclusion is not binding at trial. Defective, present-tense and unattributed hearsay evidence from the appellant could properly be given little weight. This did not reverse the burden of proof.
3. Contract. The brochure, together with the appellant’s reticence about its relationship with the hotel, supported the conclusion that Lady Brownlie had the much better argument that the appellant was the contracting party. A telephone contract is made where acceptance is received. The bespoke nature of the excursion and the absence of evidence from the concierge supported a good arguable case that acceptance was received in England. The contract gateway was therefore satisfied.
4. Tort gateway. Paragraph 3.1(9)(a) of the Civil Procedure Rules 1998 Practice Direction 6B was interpreted consistently with Article 4 and Recital 17 of Rome II. Direct injury was sustained where the accident occurred. Consequential financial loss suffered in England was insufficient. The personal claim and the estate claim therefore failed the gateway.
5. Dependency claim and foreign law. The dependency claim was a separate statutory cause of action. It required proof of Lady Brownlie’s independent dependency loss and was not merely reflective of the deceased’s loss. That loss was sustained in England. The presumption that foreign law is the same as English law remained available, although the earlier Court of Appeal ruling in [2014] EWCA Civ 1277 was no longer binding after its reversal on another issue. No reference to the CJEU was made.

1. Court of Appeal (Civil Division) allowed the appeal in respect of the personal injury and estate tort claims, but dismissed it in respect of the contract claim and the dependency claim under the Fatal Accidents Act 1976.
2. High Court, Queen’s Bench Division (Tugendhat J), in [2014] EWHC 273 (QB), allowed Lady Brownlie’s appeal from Master Cook and restored permission to serve the proceedings out of the jurisdiction.