Our March 2018 Personal Injury and Travel Update focuses on the Supreme Court’s judgment in Brownlie v Four Seasons Holdings Inc.  UKSC 80 provides a consideration of the difficulties a claimant can face in seeking to bring a claim in the courts of England and Wales against a party located outside that jurisdiction (and outside of the EU) and seeking the court’s permission for doing so under CPR r6.36.
In January 2010 Lady Brownlie and her husband Sir Ian Brownlie QC were on holiday, staying at the Four Seasons Hotel, Cairo (“the Hotel”). Prior to the holiday, Lady Brownlie had booked with the Hotel’s concierge an excursion to a safari tour to take place during her and her husband’s stay at the Hotel. The excursion was provided by the Hotel, was to take place on 3 January 2010, would involve the use of a hired chauffeur-driven car and was for Lady Brownlie, Sir Ian, Sir Ian’s daughter Rebecca, and Rebecca’s two children (“the excursion”).
During the excursion, the car left the road and crashed, killing Sir Ian and Rebecca, and seriously injuring Lady Brownlie and Rebecca’s two daughters.
Lady Brownlie began proceedings in the courts of England and Wales against Four Seasons Holdings Inc. (“Holdings”), a company incorporated in British Columbia, Canada and the holding company of the Four Seasons hotel group. (Lady Brownlie had also included Nova Park SAE as a second defendant, identified as the company owning the building which the Hotel occupied, but this claim was not pursued and the claim form, after being issued in December 2012, was not served on Nova.) Lady Brownlie made the following claim against Holdings:
i. Damages for personal injury in her own right (i.e. for the serious injuries she had sustained);
ii. Damages under the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”) in her capacity as Sir Ian’s executrix (i.e. for the fatal injuries Sir Ian had sustained)and;
iii.Damages for bereavement and loss of dependency under the Fatal Accidents Act 1976 (“the 1976 Act”) in her capacity as widow.
However, before the claim against Holdings could proceed, Lady Brownlie required the court’s permission to serve the claim form on Holdings in British Columbia, out of the jurisdiction of England and Wales, in accordance with CPR r6.36 and r6.37 and the gateways set out in CPR 6BPD, para. 3.1.
So far as Lady Brownlie’s claim was founded in contract, the gateway set out in CPR 6BPD, para. 3.1(6)(a) was relied upon, it being alleged that the contract for the excursion with the Hotel was made in England and Wales (i.e. before the holiday whilst Lady Brownlie was within that jurisdiction). So far as Lady Brownlie’s claim was founded in tort, the gateway set out in CPR 6BPD, para. 3.1(9)(a) was relied upon, it being alleged that the damage incurred was sustained in England and Wales.
In addition to bringing the claim within the gateways set out in CPR 6BPD, para. 3.1, and those aforementioned gateways in particular, to obtain the court’s permission in accordance with CPR r6.36 it was also necessary for Lady Brownlie to satisfy the further requirements set out in CPR r6.37(1)(b), that she ‘believes that the claim has a reasonable prospect of success’ and CPR r6.37(3) that ‘England and Wales is the proper place in which to bring the claim’.
It was common ground between Lady Brownlie and Holdings that CPR r6.37(3) would be satisfied so long as the conditions under CPR 6BPD, para. 3.1 and CPR r6.37(1)(b) were satisfied. It was also common ground that, in respect of any claim in contract, Egyptian law was the applicable law (i.e. separate from the jurisdictional issue of where the claim is to be heard).
Lady Brownlie was initially granted permission, but, following an application made by Holdings, the permission was set aside. On appeal by Lady Brownlie to the High Court, the initial granting of permission was restored ( EWHC 273 (QB)). On appeal by Holdings to the Court of Appeal, service was permitted outside England and Wales in respect of Lady Brownlie’s contractual claim and her claim under the 1976 Act but disallowed in respect of her claim under the 1934 Act and her claim for damages for her own injuries ( EWCA Civ 665). Holdings then appealed, and Lady Brownlie cross-appealed, to the Supreme Court.
(i)The applicable evidential standard
Lord Sumption attempted to overcome two concerns present when an application for permission is made under CPR r6.36 and bringing a claim within one of the gateways in CPR 6BPD, para. 3.1, particularly those gateways relied upon by Lady Brownlie and which require the court to be ‘satisfied of some jurisdictional fact’ (): firstly, the lacuna as to the applicable evidential standard for such an application and, secondly, the facts relied upon in support of the application may be in issue at trial where it is likely that fuller material will be available.
Lord Sumption held at  –  that the evidential standard upon an applicant seeking permission in accordance with CPR r6.36 is that there is a “good arguable case”, which is that ‘one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, ie of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction’ (adopting the observations of Waller LJ in his leading judgment in Canada Trust Co Stolzenberg (No 2)  1 WLR 547, 555 (CA)).
Lord Sumption added the following explication to the evidential standard:
‘… (i) … the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitation of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it’.
The evidential burden is therefore, as anticipated, more than a prima facie case but not quite the normal civil standard of the balance of probabilities. Further, the position shows a sensible approach that can respond to the available, or lack of, material when an application is made.
(ii) Lady Brownlie’s claim in contract
Lord Sumption marvellously summarises Holdings’ corporate position and the operation of the Hotel at , which, at , clearly established that ‘there is no realistic prospect that Lady Brownlie will establish that she contracted with Holdings, or that Holdings will be held vicariously liable for the negligence of the driver of the excursion vehicle. Lady Brownlie’s claim does not satisfy the factual requirements of the gateways… it does not satisfy the general requirement that there should be a reasonable prospect of success’ (emphasis added). Accordingly, there was no need to consider where the contract was made for the purposes of the gateway in CPR 6BPD, para. 3.1(6)(a).
Lord Sumption added obiter, however, that the Civil Procedure Rule Committee should consider what test is to be applied for determining when and where a contract is concluded. Lord Sumption stated that cases such as Entores v Far East Corporation  2 QB 327 and Adams v Lindsell  EWHC KB J59 provide clear rules in determining whether a contract has been concluded at all but are ‘not at all satisfactory’ in determining when or where the contract was formed for the purposes of CPR 6BPD, para. 3.1(6)(a). Lady Hale expressed a more restrained view on this point at .
(iii) Lady Brownlie’s claim in tort
Lord Sumption’s summary of Holdings’ corporate position and the operation of the Hotel echoed into Lady Brownlie’s claim in tort; Lady Brownlie had selected the incorrect party in bringing her claim against Holdings. Lord Sumption added obiter at , however, that ‘in any event [he would] have held that the order for service out [of the jurisdiction] could not stand so far as it concerned the claims in tort’.
Developing this obiter dismissal of granting permission for service out of the jurisdiction, Lord Sumption noted at  that in addition to there being common ground between the parties that Egyptian law governed any claim in contract, the parties also accepted that Egyptian law governed any claim in tort. Accordingly, and following the decision of the Supreme Court in Cox v Ergo Versicherung AG  AC 1379 which held that the 1976 Act does not apply to a tort which is not governed by the law of England and Wales, Lady Brownlie’s claim under the 1976 Act had no prospect of success.
What remained of Lady Brownlie’s claim in tort was for damages for personal injury caused by negligence, personally and under the 1934 Act as executrix of Sir Ian’s estate. Much to the interest of travel lawyers, the Supreme Court then grappled, obiter, with the meaning of ‘damage’ in CPR 6BPD, para. 3.1(9) and in what circumstances the courts of England and Wales can assume jurisdiction.
At , Lord Sumption summarised that the Supreme Court had to consider ‘whether, when a tortious act results in personal injury or death, “damage” is limited to the direct damage, ie the physical injury or death, or extends to the indirect damage, ie the pecuniary expenditure or loss resulting’.
The gateway under CPR 6BPD, para. 3.1(9) provides as follows:
3.1 The Claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where – …
(9) a Claim is made in tort where –
(a) damage was sustained, or will be sustained, within the jurisdiction; or
(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction’.
Lord Sumption took the approach that ‘damage’ means “direct damage”, therefore meaning that, in Lady Brownlie’s case, that ‘damage’ had occurred in Egypt, not in the jurisdiction of England and Wales. Lord Sumption did not rely upon any test applicable to identifying the applicable law to a claim (i.e. Rome II, Article 4 (Regulation (EC) No 864/2007)) as affecting the test for determining the jurisdiction of a claim, as ‘there is no necessary connection between the two’ (). Lord Sumption, as stated at , was of the opinion that there is ‘a fundamental difference between the damage done to an interest protected by the law [(bodily integrity)], and facts which are merely evidence of the financial value of that damage’. Lord Sumption stated that the draftsmen of CPR 6BPD, para. 3.1(9) could have expressly stated that ‘damage’ should extend to the financial or physical consequences of damage sustained, ‘but there is nothing in the language to suggest that’.
Furthermore, Lord Sumption added two policy considerations for his interpretation. Firstly, the gateways are ‘concerned to identify some substantial and not merely casual or adventitious link between the cause of action and England’. If ‘damage’ adopted the wider meaning encompassing financial and physical consequences of damage sustained, jurisdiction would be conferred on the courts of England and Wales in the vast majority of claims, particularly those involving serious injuries and the long-term financial or physical consequences which are suffered mainly back in a claimant’s domicile, i.e. in Lady Brownlie’s case: England. Secondly, the relationship between CPR 6BPD, para. 3.1(9) and Article 5.3 of the Brussels Convention and the Brussels Regulations (Regulations (EC) No 44/2001 and Regulation (EU) 1215/2012), which deal with jurisdictional issues between parties domiciled in EU member states, and which had seen the Court of Justice interpret ‘the harmful event’ in the same manner as Lord Sumption had interpreted ‘damage’ in CPR 6BPD, para. 3.1(9). Permeating through both of these reasons was also the general rule that claims should be brought in the jurisdiction of the defendant’s domicile.
Accordingly, Lord Sumption, and Lord Hughes, would have held, if necessary, that Lady Brownlie’s claim for damages for personal injury caused by negligence did not fall within the gateway in CPR 6BPD, para. 3.1(9)(a).
Lady Hale agreed with Lord Sumption’s dismissal of considering any test identifying the applicable law to a claim as affecting the test of determining the jurisdiction of a claim (). However, Lady Hale considered a ‘consistent line’ of first instance decisions holding that ‘in a case not governed by… [EU] jurisdictional rules, a claim in tort may be brought in England if damage is suffered here as a result of personal injuries abroad’ ( onwards). For Lady Hale, ‘damage’ should be given an ordinary and natural meaning ( and ) and the gateway under CPR 6BPD para. 3.1(9) had not been completely assimilated with the Brussels Convention and Regulations (). Further, Lady Hale considered that the discretion that remained with the court (i.e. CPR r6.37(3)) prevented such an interpretation of ‘damage’ as being too wide to allow claimants to be in a position of choosing where to bring a claim ( and ).
Adopting Lady Hale’s interpretation, Lord Wilson () and Lord Clarke () added that the absence of the definite article “the” before ‘damage’ in CPR 6BPD para. 3.1(9) meant that ‘damage’ ‘can be wider than the damage which violates the claimant’s interest [(i.e. the claimant’s bodily integrity)] and which completes the cause of action’.
Accordingly, Lady Hale, and Lord Wilson and Lord Clarke, a bare majority, would have held, if necessary, that Lady Brownlie’s claim for damages for personal injury caused by negligence did fall within the gateway in CPR 6BPD, para. 3.1(9)(a).
It is unusual to see such differences in conclusion and such a close margin in a Supreme Court decision, however, as Lady Hale correctly reminds at , ‘everything… [said in this judgment] about jurisdiction is obiter dicta and should be treated with appropriate caution’.
We have not seen the final word on the interpretation of ‘damage’ in CPR 6BPD para. 3.1(9), but we have a vivid insight into at least two possible final interpretations, nor have we seen the final word on what test is to be applied, or whether the scope can be extended, in determining when and where a contract is concluded for CPR 6BD para. 3.1(6)(a). Such obiter dicta from the Supreme Court, however, will be highly persuasive, and it remains to be seen whether the Civil Procedure Rule Committee will consider Brownlie v Four Seasons Holdings Inc. and make its own amendments to CPR 6BPD para. 3.1 to reflect the same.
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October 8, 2021