Lady Christine Brownlie (Widow and Executrix of the Estate of Professor Sir Ian Brownlie CBE QC) v Four Seasons Holdings Incorporated
Jurisdiction | England & Wales |
Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
Judgment Date | 19 February 2014 |
Neutral Citation | [2014] EWHC 273 (QB) |
Docket Number | Case No: HQ12X05479 |
Court | Queen's Bench Division |
Date | 19 February 2014 |
[2014] EWHC 273 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ12X05479
John Ross QC & Matthew Chapman (instructed by Kingsley Napley) for the Claimant
Marie Louise Kinser (instructed by Kennedys Law LLP) for the Defendant
Approved Judgment
Hearing date: 29 January 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal by the Claimant against the order of Master Cook dated 31 July 2013. On that date he declared that this court has no jurisdiction to try this claim. He set aside the order of Master Yoxall dated 15 April 2013 by which Master Yoxall had given permission to serve the proceedings on the defendant in Canada.
The claim is for damages for personal injuries. The Claimant claims both in her own right for injuries suffered by herself, and under the Fatal Accidents Act 1976. She also claims under the Law Reform (Miscellaneous Provisions) Act 1934 as the executrix of the estate of her late husband ("Sir Ian").
The claim arises out of a road traffic accident in Egypt on 3 January 2010. The vehicle in which the Claimant and Sir Ian were travelling left the road, with the result that she was injured and Sir Ian was killed. Further details of the claim will be given below in the discussion on the merits of the claim. At the time the accident occurred there were other passengers of the vehicle, apart from the driver. Sir Ian's daughter Rebecca was also killed. She was then living in Egypt with her husband and children. The two children were also in the vehicle and survived.
At the time of the accident the Claimant, Sir Ian and their family were on a Tour ("the Tour" or "the excursion" or "the safari") to see some of the sights of Egypt. They had departed on the Tour that morning from the hotel at which they were staying. The hotel refers to itself in its publicity material as "The Four Seasons Hotel Cairo at Nile Plaza" ("the Hotel"). The Claimant and Sir Ian had booked their accommodation at the Hotel through Cox & Kings Ltd in London, but that booking did not include the Tour. The Claimant booked the Tour by telephoning the Concierge at the Hotel shortly before she and Sir Ian left England, on 21 December 2009. She was able to do that because they had stayed at the Hotel in the previous year, and on that occasion the Claimant had picked up a booklet from the Hotel which advertised the tours that the Hotel provided. The brochure is a twelve page document containing details of twenty different tours.
The first page of the brochure is in the form of a letter addressed to "Dear Guest" and signed by the "Chief Concierge". The letter invites guests to make a reservation by contacting the Chief Concierge or his team. The tours advertised required the provision of services, including transport, guides and refreshment. The only indication in the Concierge's letter as to who was to provide those services is contained on the last page, under the tree Logo which is used on all documents relating to Four Seasons Hotels. The text reads:
"FOUR SEASONS HOTEL
Cairo at Nile Plaza
1089 Corniche El Nil
Garden City, 11619, Cairo — Egypt
Tel: …
For reservations please call the concierge Ext 2200".
The Claimant made the booking in a telephone call to a female member of the concierge team ("the Concierge"). It is of course common ground between the parties that the Concierge was not acting as principal in that arrangement. Nor is it now suggested that she was acting as agent for the local Egyptian car hire business, which it is said, supplied the vehicle and driver (in any event, the car hire company would be likely to provide only two elements of the package, the vehicle and the driver, but not other elements such as meals, a guide, and, in the present case, a police escort). It is now common ground that the Concierge was a representative of a corporate entity which was itself engaged in the management of the hotel. The most important issue that arises on this application is whether the Master was entitled to find that that corporation, the Concierge's principal, was not this Defendant.
This issue arises in circumstances where the Defendant is not named in the brochure used by the Claimant to book the Tour. The only other document available to the Claimant before she made the booking for the Tour was the itinerary issued to her by Cox & Kings Ltd in London. In the pages of that long document headed "Hotel Contact Details", there are listed the hotels where the Claimant and Sir Ian were going to stay in India (where their itinerary first took them) and Egypt. The address and telephone numbers for their accommodation in Egypt was that of the Hotel, as given above. The only information given in the itinerary in addition to that at the end of the brochure is the website URL, namely www.fourseasons. com. However that takes the matter no further. The Claimant does not say she accessed the website. Even if she had accessed it, it would have made little difference to what I have to decide. That is because that website does not identify the corporate entity which operates or manages the Hotel, nor any other individual or corporate entity who, or which, according to the Defendant, might be the right defendant if the Defendant is not the right defendant.
Solicitors for the Claimant conducted enquiries. On 7 June 2010 they wrote a letter before action. 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 they accepted primary liability for the claim and were 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 Tour 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 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 substantive part of the letter reads as follows:
"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 the Claimant's solicitors received a fax from lawyers in Cairo. The substantive part of the fax read as follows:
"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 concluded saying the only responsible person was the driver and his employer, AAHD Company, and there was given the address of their insurers in Egypt. The letter is signed by Dr Tarek F Riad "Legal Advisor for Four Seasons Hotel Cairo at Nile Plaza".
On 9 May the Claimant's solicitors replied to Dr Riad. They made the point that the Hotel staff gave every indication that the contract for the Tour 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. The suggestion that the Concierge was acting as agent for the Egyptian car hire company has not been pursued in these proceedings. The Claimant's solicitors then went on to write as follows:
"Your letter refers to both the "Four Seasons Hotels and Resorts" and the "Four Seasons Hotel Cairo at Nile Plaza". We are unclear as to whether these are separate corporate entities. If they are, would you confirm which corporation was responsible for the contract whereby our client booked accommodation at the hotel. Please would [you] also explain the status of these two corporate entities under Egyptian law, and their relationship with the parent company in Canada".
There was no reply to that letter. On 9 May 2011 solicitors wrote again to Ms Waugh in Toronto. They attached a copy of the letter they had sent to Dr Riad. On 16 May Ms Waugh replied on letter paper similar...
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