Four Seasons Holdings Incorporated v Brownlie
| Jurisdiction | England & Wales |
| Judge | Lord Sumption,Lord Hughes,Lady Hale,Lord Wilson,Lord Clarke |
| Judgment Date | 19 December 2017 |
| Neutral Citation | [2017] UKSC 80 |
| Date | 19 December 2017 |
| Court | Supreme Court |
[2017] UKSC 80
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
Lord Hughes
Four Seasons Holdings Incorporated
Howard Palmer QC
Marie Louise Kinsler QC
Alistair Mackenzie
(Instructed by Kennedys Law LLP)
Brownlie
John Ross QC
Matthew Chapman QC
(Instructed by Kingsley Napley LLP)
Heard on 9 and 10 May 2017 and 20 July 2017
( with whom Lord Hughes agrees)
The claimant, Lady Brownlie, is the widow of the distinguished international lawyer Sir Ian Brownlie QC. In January 2010, she and her husband were on holiday in Egypt, staying at the Four Seasons Hotel Cairo at Nile Plaza. Lady Brownlie's evidence is that on a previous visit to the hotel, she had picked up a leaflet published by the hotel advertising safari tours which it provided. Before leaving England on the subsequent trip, she telephoned the hotel and booked with the concierge an excursion to Fayoum in a hired chauffeur-driven car. The excursion took place on 3 January, and ended in tragedy. The car left the road and crashed. The passengers, in addition to Sir Ian and Lady Brownlie, were his daughter Rebecca, and Rebecca's two children. Sir Ian and Rebecca were killed. Lady Brownlie and the two children were seriously injured.
Lady Brownlie subsequently began proceedings for (i) damages for personal injury in her own right, (ii) damages under the Law Reform (Miscellaneous Provisions) act 1934 in her capacity as Sir Ian's executrix, and (iii) damages for bereavement and loss of dependency under the Fatal Accidents Act 1976 in her capacity as her late husband's widow. The First Defendant, Four Seasons Holdings Inc ("Holdings"), is the holding company of the Four Seasons hotel group. It is incorporated in British Columbia. The Second Defendant, Nova Park SAE ("Nova Park") is an Egyptian company which was identified by Lady Brownlie's solicitors as the owner of the hotel building. The claim form has not been served on Nova Park and, apart from the issue of the claim form, no attempt has been made to pursue the claim against them. Nor have they been represented at any stage. The present appeal is concerned only with the position of Holdings, which has applied to set aside the claim form and service thereof out of the jurisdiction so far as it relates to them.
Before permission can be given for the service of originating process out of the jurisdiction, it is necessary for the claimant to establish (i) that the case falls within at least one of the jurisdictional gateways in CPR 6BPD, para 3.1, (ii) that she has a reasonable prospect of success, and (iii) that England and Wales is the proper place in which to bring the claim. The third of these conditions reflects the principle of forum conveniens, and there is no issue about it in this case. It is accepted that England is a proper place in which to bring the present claim if the first two conditions are satisfied. So far as the claim is founded on contract, Lady Brownlie's application for permission to serve out was based on CPR 6BPD, para 3.1(6)(a) ("the contract … was made within the jurisdiction"). So far as it was founded on tort, it was based on CPR 6BPD, para 3.1(9)(a) ("damage was sustained … within the jurisdiction"). Holdings says, first, that Lady Brownlie has not established that the contract with the hotel was made in England, but that wherever it was made, it was not made with them. Their case is that they are a group holding company whose subsidiaries provide certain central services to hotels of the Four Seasons hotel chain but neither own nor operate them. Gateway (6)(a) does not therefore apply. Secondly, they say that gateway (9)(a) does not apply because the damage which is the basis of the claim in tort was not sustained in England. Thirdly, they say that Lady Brownlie does not satisfy the requirement of CPR 6.37(1)(b) that there should be a "reasonable prospect of success". It is common ground that any relevant contract for the services of the car and driver was governed by Egyptian law.
Some of the jurisdictional gateways in CPR 6BPD merely require that the claim should be of a particular character. For example it is a claim for an injunction regulating conduct within the jurisdiction. Others, including gateways 6(a) and 9(a) on which Lady Brownlie relies, depend on the court being satisfied of some jurisdictional fact. A relevant contract must, for example, have been made or breached in England or relevant damage sustained there. There are two closely related problems about this. The first is a legal one, namely that none of the law's established evidential standards satisfactorily meets the case. The second is a practical one, namely that some jurisdictional facts, for example the existence of the contract said to have been made or breached in England, may be in issue at trial if the case is allowed to proceed, when they will in all probability be determined on fuller material than is likely to be available at the interlocutory stage. The same is true of the more general requirement that if it proceeds the claimant should have a reasonable prospect of success.
The leading modern cases are the decisions of the House of Lords in Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 and Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438. Vitkovice was about the evidential standard to be applied to the applicability of the jurisdictional gateways. It concerned what was then RSC order 11, rule 1(e) ("the claim is brought in respect of a breach committed within the jurisdiction of a contract made within or out of the jurisdiction"). The Appellate Committee held that each element of the gateway's factual requirements had to be established, namely the contract, the breach and its geographical location. However, it rejected the view expressed by Lord Goddard CJ in Malik v Narodni Banka Ceskoslovenska [1946] 2 All ER 663 that the evidential standard for establishing that one of the jurisdictional gateways applied was the civil burden of proof, on the ground that such a test "in effect amounted to a trial of the action or a premature expression of opinion on its merits": see Lord Simonds, at p 879. It also rejected the suggestion that it was enough to show a prima facie case, because that test depended on the legal adequacy of the factual case advanced by the claimant. The application of such a test would not be consistent with the practice, which allowed a factual challenge to the evidence led by the claimant on the point. Lord Simmonds (p 880), with whom Lord Normand agreed, adopted from Counsel the expression a "good arguable case", which appeared to him to import more than a prima facie case but less than a balance of probabilities. Lord Radcliffe, with whom Lord Tucker agreed, spoke of a "strong argument" or "a strong case for argument" (pp 883, 884, 885). In Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438, Lord Goff, with the agreement of the rest of the Committee, endorsed Lord Simmonds' formulation as applied to the gateways, and suggested that Lord Radcliffe's formulation meant the same thing. At the same time, he held that the existence of a reasonable prospect of success fell to be determined according to a lesser standard, namely that there should be a "serious issue to be tried". This has been held to correspond to the test for resisting an application for summary judgment: Altimo Holdings and Investments Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804, para 71.
Since Lord Goff considered that the evidential standard applicable to jurisdictional facts relevant to the availability of the gateway was derived from RSC order 11, rule 4(2) ("No such leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order"), he must also have thought that the standard was the same whether the jurisdictional fact in question would or would not be in issue at a trial on the merits. I think that that must be right, and equally true of the current rules, although the language of CPR 6.36, which limits the court's jurisdiction to cases falling within the gateways, is not precisely the same.
An attempt to clarify the practical implications of these principles was made by the Court of Appeal in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547. Waller LJ, delivering the leading judgment observed at p 555:
"'Good arguable case' reflects … 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."
When the case reached the House of Lords, Waller LJ's analysis was approved in general terms by Lord Steyn, with whom Lord Cooke and Lord Hope agreed, but without full argument: [2002] AC 1, 13. The passage quoted has, however, been specifically approved twice by the Judicial Committee of the Privy Council: Bols Distilleries (trading as Bols Royal Distilleries) v Superior Yacht Services Ltd [2007] 1 WLR 12, para 28, and Altimo Holdings, loc cit. In my opinion it is a serviceable test, provided that it is correctly understood. The reference to "a much better argument on the material available" is not a reversion to the civil burden of proof which the House of Lords had rejected in Vitkovice. What is meant is (i) that the claimant must supply a plausible evidential basis for the...
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