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)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 01 October 2019 |
| Neutral Citation | [2019] EWHC 2533 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12X05479 |
| Date | 01 October 2019 |
[2019] EWHC 2533 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: HQ12X05479
and
John Ross QC (instructed by Kingsley Napley) for the Claimant
Marie Louise Kinsler QC and Alistair Mackenzie (instructed by Kennedys) for the Defendant and the Proposed Defendant
Hearing dates: 24 th, 25 th and 26 th July 2019
Approved Judgment
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.
Introduction
I am considering applications by the Claimant to substitute the proposed Defendant (‘LLC’) as the defendant to these proceedings in place of the (effectively sole) existing defendant (‘Holdings’), alternatively to correct the name of the Defendant from Holdings to LLC; for permission to amend the Claim Form and Particulars of Claim; and for permission to serve the Claim Form and Amended Particulars of Claim out of the jurisdiction on LLC in Egypt, where it is based.
The claim has already been the subject of much litigation including an appeal to the Supreme Court ( Brownlie v Four Seasons Holdings Inc [2017] UKSC 80, [2018] 1 WLR 192 (SC)).
The underlying facts were summarised by Lord Sumption in this way in [1] of the Supreme Court's judgment,
‘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 rd January 2010 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.’
Two defendants are currently named in the Claim Form. The first is Holdings. The second was Nova Park Cairo SAE (‘Nova Park’), an Egyptian company which, it was understood, owned the hotel in Cairo at which the family stayed. Nova Park was never served and has effectively dropped out of the picture. LLC, it is now understood, was responsible at the relevant time for the operation and management of the Cairo hotel.
Lady Brownlie brings the claim in three capacities. The first is in her personal capacity in respect of the injuries which she herself suffered. The second, is as Sir Ian's executrix and on behalf of his estate for the claim which he had before his death. In English law, that would be a claim pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. The third capacity is as his dependent. In English law, that would be a claim under the Fatal Accidents Act 1976. I say, in relation to her second and third capacities what the statutory basis for those claims ‘would be’ because it is common ground the governing law of her substantive claims is not English law but the law of Egypt.
Although this is common ground, it is necessary to explain why this is so. The applicable law in the contract claim is determined by an EU Regulation known as ‘ Rome I’ ( Regulation (EC) No. 593/2008 of the European Council and Parliament). By Article 4(1)(b) of Rome I, the applicable law is the law of the country where the service provider is habitually resident. It is the Claimant's case that the ‘service provider’ in this case was LLC. As an Egyptian company, LLC would be treated as habitually resident in Egypt since that is likely to be where its central administration is (see Rome I Article 19). It makes no difference if the service provider is treated as the Limousine Company (AAHD – see below) since that, too, appears to be an Egyptian company. The applicable law for the claims in tort is governed by another EU Regulation ( Regulation (EC) No. 864/2007 of the European Parliament and the Council), this one known as ‘ Rome II’. By Article 4(1) of Rome II, the applicable law is the place where the damage occurred. For these purposes, ‘damage’ means direct damage and indirect or consequential damage is not taken into account (see also Recital (17)). The same applies to claims following a fatality — see Lazar v Allianz SpA (Case C-350/14) [2016] 1 WLR 835. Mr Ross QC, on the Claimant's behalf, accepts that the direct damage to both the Claimant and her husband took place in Egypt, the place of the accident. Hence, he agrees that the applicable law for all of the tort claims will be Egyptian law. He accepts as well that this is the case in each of the capacities that Lady Brownlie brings her claim in tort. Egyptian law will govern liability, damages and limitation ( Rome I Article 12 and Rome II Article 15), but not evidence and procedure (see Rome I Article 1(3) and Rome II Article 1(3)).
Sir Ian's two grandchildren who, as Lord Sumption said, were also injured in the accident are not parties to the present claim.
The claims identified in the Particulars of Claim (in both their original form and in the draft amended form) are based in both contract and tort.
The driver of the car in which the Brownlie family had been travelling was Hussein Mohammed Abdullah Salamah. He was prosecuted for involuntary manslaughter. He was convicted on 22 nd April 2010 and sentenced to imprisonment. His appeal was dismissed on 2 nd September 2010.
Procedural History
The Claimant's solicitors are Kingsley Napley (‘KN’). On 7 th June 2010 KN wrote a full letter of claim to the Legal Department of ‘Four Seasons Hotels and Resorts’ (It subsequently became apparent in the course of the Supreme Court hearing that there is no corporate entity with this name. Rather, it is used as a generic description for the Four Seasons group of companies). KN said that they had been instructed by Lady Christine Brownlie in connection with proposed legal proceedings against ‘the Four Seasons Hotel Group Worldwide’. The letter included the following,
‘there are some preliminary conclusions that can be drawn and they are as follows:-
1. No other vehicle was involved in the accident.
2. The vehicle was travelling at considerable speed. The terrain was apparently fairly smooth, but there would have been an obvious risk of potholes, or other hidden hazards.
3. The contract for the safari was made in England by telephone on the 21 December 2009. The contract was between our client and the Four Seasons Hotel, and it was agreed that the cost of the safari would be added to the bill for the accommodation and other services at the Hotel.
4. The safari was arranged by the Four Seasons Hotel Group, which set the itinerary and provided the vehicle, driver, tour guide and police escort.
5. The Four Seasons Hotel is therefore directly and/or vicariously liable for the accident and any claims which may arise, be they in contract, negligence or pursuant to statute.’
The letter also asked that, if the addressee did not accept liability, they ‘identify any other parties that you believe to be responsible.’
On 27 th July 2010 Marilyn Waugh, who was described as ‘Corporate Legal Advisor’ replied on behalf of ‘Four Seasons Hotels and Resorts’. She said that the correspondence had been passed to AAHD Limousine and the Four Seasons Hotel in Cairo at Nile Plaza because the accident had taken place in Cairo. Ms Waugh copied in Olivier Masson, the General Manager of the Four Seasons Hotel Cairo at Nile Plaza.
On 22 nd August 2010 KN also received a fax from Dr Riad of an Egyptian firm of lawyers, Kosheri, Rashed and Riad, on behalf of Four Seasons Hotel Cairo at Nile Plaza. Mr Riad denied that the accident was caused by Four Seasons Hotels and Resorts, or by Four Seasons Hotel Cairo at Nile Plaza. It named the driver of the car (see above) and said he had been employed by AAHD Limousine Company and gave their address. Mr Riad denied that the Hotel was responsible for the accident. Its role had been merely to relay the request for the tour to AAHD.
On 9 th May 2011 KN wrote again to Dr Riad maintaining that the contract would have been with ‘the Four Seasons Hotel Group’. It said that KN intended to serve the proceedings at the principal place of business of the group in London. It again sought information as to the identity of Four Seasons Hotels and Resorts and Four Seasons Hotel Cairo at Nile Plaza, and their relationship to the parent company in Canada. On 16 th May 2011 Ms Waugh again wrote to KN to say that any claim should be brought against AAHD Limousine Company or its insurer. The addresses of both were given.
The Claim Form was issued on 19 th December 2012. The claim was in contract and in tort. The Claimant sued in the three capacities which I have previously mentioned. The claim on behalf of Sir Ian's estate expressly relied on the Law Reform (Miscellaneous Provisions) Act 1934 and her claim as a dependent expressly relied on Fatal Accidents Act 1976. There were the two defendants: Holdings and Nova Park Cairo SAE, the latter described as the owner of the Four Seasons Hotel Cairo at Nile Plaza. As I have said, the 2 nd Defendant was not served and it has played no part in the proceedings.
At an early stage, the...
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