Lady Christine Brownlie v Four Seasons Holdings Incorporated
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Bean,Lady Justice King |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] EWCA Civ 665 |
| Docket Number | Case No: B3/2014/0787 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 2015 |
[2015] EWCA Civ 665
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Queen's Bench Division
The Honourable Mr Justice Tugendhat
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Bean
and
Lady Justice King
Case No: B3/2014/0787
Howard Palmer QC and Marie Louise Kinsler (instructed by Kennedys Law LLP) for the Appellant
John Ross QC and Matthew Chapman (instructed by Kingsley Napley LLP) for the Respondent
Hearing dates: 25–26 February 2015
OVERVIEW
The appellant is a Canadian corporation which runs the Four Seasons chain of hotels. This appeal arises out of an excursion which the respondent, Lady Brownlie, her husband, Sir Ian Brownlie and close family undertook in Egypt on 3 January 2010. Lady Brownlie and Sir Ian Brownlie were both citizens and residents of the UK. Lady Brownlie was injured and her husband, the late Sir Ian Brownlie, was tragically killed in a motor accident while on this excursion. The excursion was organised by the concierge of the Four Seasons Hotel Cairo at Nile Plaza, Egypt ("the hotel"). Lady Brownlie returned after the accident to the UK.
Lady Brownlie has now brought proceedings in this jurisdiction to recover damages in contract and also in tort, She has three tort claims: (1) for her own injuries (her "personal claim"), (2) for her loss as a dependent of Sir Ian Brownlie under the Fatal Accidents Act 1976 ("FAA76") (her "FAA76 claim"), and (3) for the loss and damage suffered by Sir Ian in her capacity as executrix of Sir Ian Brownlie's estate, under the Law Reform (Miscellaneous Provisions) Act 1934 ("LRMPA34") (the "LRMPA34 claim"). She obtained the court's permission pursuant to the Civil Procedure Rules ("CPR") to serve these proceedings on the appellant in Canada on a without notice application but the appellant then applied to set that permission aside. Permission must be set aside unless Lady Brownlie can show a "good arguable case" in relation to her claims: as to her claims in contract, that the contract in question was (a) made in England or (b) governed by English law; and, in relation to her claims in tort, that the appellant is the proper defendant and that damage was "sustained" in this jurisdiction (see paragraphs 3.1(6)(a) and (c) and 3.1(9)(a) of the Practice Direction 6B of the CPR set out in para 27 below).
The appellant was successful before Master Cook but unsuccessful before the judge, Tugendhat J, in its application to set aside the court's permission to serve the proceedings out of the jurisdiction. I summarise their judgments in paragraphs 31 to 45 below. The appellant now appeals to this court.
This appeal involves the elucidation and application of established principle, known as the Canada Trust gloss, and (so far as this court is concerned) a novel question of law in relation to the tort claim about where the damage was sustained. I summarise my conclusion in this judgment in paragraph 93 below.
CONTRACT FOR THE EXCURSION
Lady Brownlie had stayed at the hotel the previous year and then obtained a brochure on excursions which the hotel offered. The first page of the brochure was in the form of a letter addressed to "Dear Guest" and signed by the "Chief Concierge". Guests were invited to contact the Concierge. The brochure did not name the service provider but on the last page there was the logo of the Four Seasons chain, in the form of a stylised tree, and the following text:
FOUR SEASONS HOTEL
Cairo at Nile Plaza
CORNICHE EL NIL
GARDEN CITY, 11619, CAIRO – EGYPT…
For reservations please call the concierge Ext 2200
Shortly before leaving England (on 19 December 2009) with Sir Ian Brownlie, Lady Brownlie telephoned the concierge at Four Seasons Cairo at Nile Plaza. Lady Brownlie made the booking for her chosen excursion in a telephone call to a female member of the concierge team. Sir Ian Brownlie's daughter, Rebecca, and her two sons, were to go on the excursion as well. At some point Lady Brownlie must have chosen the particular excursion that she wanted to take, which was to Al-Fayoum. The accident occurred during the excursion but we are not concerned with the circumstances.
The arrangements which Lady Brownlie made with the concierge were clearly contractual. But on whose behalf was the concierge acting? As explained in the next section of this judgment, Lady Brownlie's representatives set about taking steps to identify the other contracting party.
UNSUCCESSFUL ATTEMPTS TO IDENTIFY OTHER CONTRACTING PARTY
On 7 June 2010 Lady Brownlie's solicitors wrote a letter to the appellant. They addressed the letter to:
"Four Seasons Hotels and Resorts
Legal Department
1165 Leslie Street
Toronto, Ontario, Canada".
After setting out the nature of the claim, they asked the addressee to confirm that it accepted primary liability for the claim and was content for it to be brought in the English court. The letter went on to ask that, if liability were not accepted, the addressee should give reasons and identify any other parties believed to be responsible. The solicitors also asked for pre-action disclosure of documents relating to the booking for the selected excursion in particular:
"Documentation between the Hotel, the driver and the tour guides. For example, contracts of employment, booking forms and payment schedules".
On 27 July 2010 the solicitors received a substantive reply. It was on letter paper headed with the tree logo and the words, "Four Seasons Hotels and Resorts". The writer of the letter identified herself as "Marilyn Waugh LLB, Corporate Legal Advisor". The address from which the letter was sent was the address in Toronto to which the solicitors' letter had been sent. In addition to the address and telephone number there appears the website address www.fourseasons.com. A copy of the letter is said to have been sent to: "Olivier Masson, General Manager Four Seasons Hotel at Nile Plaza". The letter stated:
"Please be advised that we have provided your earlier correspondence to AAHB Limousine and to Four Seasons Hotel at Nile Plaza for handling as the accident took place in the vicinity of Cairo. We requested that your correspondence be provided to their respective insurance carriers for direct response. We will follow up and request a timely response".
On 22 August 2010 Lady Brownlie's solicitors received a fax from lawyers in Cairo, containing the following:
"1. The unfortunate accident that caused the death of the late Sir Ian Brownlie was not caused by Four Seasons Hotels and Resorts, nor by Four Seasons Hotel, Cairo at Nile Plaza, but was caused by Mr Hassan Mohammed Abdullah Salima who was employed as a driver at the time of the accident by AAHD Limousine Company … [the address in Egypt is given]
2. Mr Salima never worked for Four Seasons Hotels and Resorts nor for the Four Seasons Hotel, Cairo at Nile Plaza…
5. The role of Four Seasons Hotel, Cairo at Nile Plaza in this case was merely to relay this request to AAHD which executed it by one of its cars driven by one of its own employees without any involvement of Four Seasons Hotels and Resorts or of the Four Seasons Hotel Cairo at Nile Plaza…".
The letter further stated that only the driver and his employer, AAHD Limousine Company, were responsible and it gave their insurers' address. The letter is signed by Dr Tarek F Riad, who is described as "Legal Advisor for Four Seasons Hotel Cairo at Nile Plaza".
On 9 May 2010 Lady Brownlie's solicitors replied to Dr Riad. They made the point that the hotel staff gave every indication that the contract for the excursion was with the hotel, and at no time had it been suggested that the Hotel was simply acting as an agent for the car hire company. They went on to ask if there was any difference between "Four Seasons Hotels and Resorts" and "Four Seasons Hotel Cairo at Nile Plaza," and if so, what the relationship between the companies was. There was no reply to this letter. They asked the same question of Ms Waugh but she simply replied that they should bring any claim against AAHD Limousine Company. At some point, however, Lady Brownlie's solicitors identified that the building occupied by the Four Seasons Hotel at Nile Plaza was owned by a local company, Nova Park Cairo SAE ("the Egyptian company").
LADY BROWNLIE STARTS THESE PROCEEDINGS
On 19 December 2012 Lady Brownlie began these proceedings against the appellant and against the Egyptian company but the Egyptian company was not served. The proceedings alleged that Sir Ian and Lady Brownlie believed that the appellant managed the Four Seasons Hotel Cairo at Nile Plaza.
The particulars of claim state that Lady Brownlie contracted with the appellant for the provision of the excursion, alternatively the appellant owed her and Sir Ian Brownlie a duty of care at common law to exercise reasonable care and skill to ensure their reasonable safety whilst travelling on the excursion.
Before I summarise the judgments of Master Cook and Tugendhat J, I need to explain two points. The first concerns the meaning of "good arguable case", which must be shown to obtain permission to serve out, and the second point is about the Rome Regulations.
" GOOD ARGUABLE CASE" AND THE CANADA TRUST GLOSS
When the court is deciding whether it has jurisdiction, it must scrutinise most jealously the factor which gives rise to jurisdiction. As Pearson J held in Société Générale de Paris v Dreyfus Bros (1885) 29 Ch D 239 at 242–243
… it becomes...
To continue reading
Request your trial
-
Bill Kenwright Ltd v Flash Entertainment FZ LLC
...foreign defendant out of the jurisdiction and must scrutinise most jealously the factor(s) which gives rise to jurisdiction ( Brownlie v Four Seasons Holdings Inc [2016] 1 WLR 1814 at [17] CA; and c.f. Pearson J in Societe Generale de Paris v Dreyfus Bros (1885) 29 Ch D 239, 242–243). (2) T......
-
Ilyas Khrapunov v JSC BTA Bank
...the better of the argument on those grounds as explained in Canada Trust v Stolzenberg (No. 2) [1998] 1 WLR 547 at pp. 555–557 and Lady Brownlie v Four Seasons [2015] EWCA Civ 665; [2016] 1 WLR 1814 at paras. [17]–[24]. 58 Article 6 provides in relevant part as follows: "A person domicile......
-
Lady Christine Brownlie (widow and executrix of the estate of Professor Sir Ian Brownlie CBE QC) v Four Seasons Holdings Incorporated (a company incorporated in British Columbia, Canada)
...within the jurisdiction and so the dependency claim could continue – see Brownlie v Four Seasons Holdings Inc [2013] EWCA Civ 663, [2016] 1 WLR 1814 CA. 25 Both Holdings and the Claimant were given permission to appeal to the Supreme 26 The appeal hearing in the Supreme Court began on 9 t......
-
PJSC Tatneft v Gennadiy Bogolyubov and Others
...is entitled to presume that Russian law is the same as English law, based on what was stated by Arden LJ in Brownlie v Four Seasons [2015] EWCA Civ 665, [2016] 1 WLR 1814 at [88] and [89], as follows: "The remaining question is whether this court can, under Rome II, in the absence of proo......
-
Court Will Ordinarily Apply English Law In Absence Of Evidence Of Relevant Foreign Law, Unless Defendant Shows It Would Be Inappropriate To Do So
...by the obiter remarks of Arden LJ (as she was then) in OPO v MLA [2014] EWCA Civ 1277 and Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665, where she expressed the view that, in the absence of evidence as to foreign law, the presumption of foreign law being the same as English law s......
-
Table of Cases
...v Brandt [1902] 1 KB 696, 71 LJKB 367, 86 LT 625, 50 WR 654, 18 TLR 399, 46 Sol Jo 339, DC 8.19 Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665, [2016] 1 WLR 1814, [2015] CP Rep 40, [2015] 2 CLC 151, [2016] PIQR P2, CA; [2014] EWHC 273 (QB) 6.138 Brunton v Cosmosair plc, 25 Novembe......
-
Cross-border litigation in England and Wales
...6 of the Preamble to the Rome II Regulation.84. (England and Wales) Lady Chritine Brownlie v. Four Seasons Holdings Incorporated, [2015] EWCA Civ. 665.85. Ibid., para. 86–87 (emphasis added).86. Ibid., para. 92.154 Maastricht Journal of European and Comparative Law Egypt, and – as a result ......
-
Non-regulated Contracts
...regard, and as to this condition, see the detailed consideration of this question in Brownlie v Four Seasons Holdings Incorporated [2015] EWCA Civ 665, [2016] 1 WLR 1814. 99 The words ‘will be sustained’ were added by the Rules Committee by amendment effective from 1 October 2015. It may be......
-
Fog in the Gateway: Brownlie v Four Seasons Holdings Inc
...arose or theof these decisions, see A. Briggs, ‘The Hidden Depths of the Law of Jurisdiction’ [2016]LMCLQ 236.3 [2015] EWCA Civ 665, [2016] 1 WLR 1814. For criticism of the decision, see I. Bergson,‘Consequential loss and the tort gateway’ (2016) 132 LQR 42 (note).4 The divided opinions in ......