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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 14 JUL 2014

Lady Christine Brownlie (Widow and Executrix of the Estate of Professor Sir Ian Brownlie CBE QC) v Four Seasons Holdings Incorporated [2014] EWHC 273 (QB); (2014) APIL 036

Lady Christine Brownlie (Widow and Executrix of the Estate of Professor Sir Ian Brownlie CBE QC) v Four Seasons Holdings Incorporated [2014] EWHC 273 (QB); (2014) APIL 036
High Court, Queen’s Bench Division: Tugendhat J
19 February 2014

Summary

The claimant successfully appealed against an order that the court had no jurisdiction to try the claim and the decision that set aside permission to serve the proceedings on the defendant in Canada.

Detail

On 3 January 2010, the claimant, together with her husband, Sir Ian and his daughter Rebecca, and her two children were being chauffer driven on a tour around the sights in Egypt, when the vehicle left the road, killing Sir Ian and his daughter. The claimant was badly injured and claimed in her own right and also under the Fatal Accidents Act 1976 and under the Law Reform (Miscellaneous Provisions) Act 1934.
The claimant had booked the tour through the Four Seasons Hotel Cairo at Nile Plaza at which they were staying. As she had previously stayed at the hotel the year before, she had a brochure that advertised the tours that the hotel provided. The brochure was addressed to ‘Dear Guest’ and signed by the ‘Chief Concierge’. The claimant had telephoned the concierge at the hotel before she had left England on 21 December 2009 to book the tour.

The claimant’s solicitors sent a letter of claim to the hotel and requested pre-action disclosure, if liability was not accepted and details of any other parties believed to be responsible. The defendant passed the correspondence to the hotel in Egypt and Egyptian lawyers advised that the accident was caused by the driver, who was not employed by Four Seasons Hotels and Resorts or the Egyptian hotel but by an Egyptian limousine company. Further enquiries were made into the identity of the corporate entities involved, but no response was received. The claimant issued a claim form on 19 December 2012, naming the defendant as the first defendant, giving the address in Toronto. A grant of permission to serve out of the jurisdiction was given by the court and the proceedings were served. The defendant issued an application asking for an order that the English court had no jurisdiction to try the claim and alternatively, that it should not do so. The defendant relied on two defective witness statements and the master concluded that the defendant was not the party to the contract made between the concierge and the claimant for the tour, therefore granting the defendant’s application. The claimant appealed and succeeded.

On appeal, the judge was critical of the decision made by the court and stated that it was not appropriate for the court, on an application for permission to serve out of the jurisdiction or to set aside permission when given, to try the merits of the claim. The court held that the master had fallen into error in concluding that the defendant was not the party to the contract made between the concierge and the claimant for the tour. The claimant had a strongly arguable case that the other contracting party to the contract that the claimant made with the concierge was the defendant. Antonio Gramsci Shipping Corporation v Recoletos Limited [2012] EWHC 1887 Comm was cited.There was no other company identified as a possible defendant. The defendant could have no complaint if the court does not take into account what points the defendant may make or evidence it may call, at any trial but which it chose not to mention at that stage. The case of VTB Capital Plc v Nutritek International Corp [2013] UKSC 5, [2013] 2 AC 337 was also cited. The judge found that the most important evidence was the brochure, since it alone purports to identify the concierge’s principle. Where a contract is made by telephone the contract is made at the place of acceptance, Entores Limited v Miles Far East Corporation [1955] 2 QB 327, 334–5 considered. On analysis of the evidence, the contract was made in England where the claimant heard the acceptance of the booking.

The judge considered that the claimant had a good arguable case and referred to Canada Trust v Stolzenburg (No 2) [1998] 1 WLR 547 and held that England was clearly the most appropriate jurisdiction in which to try the action. The judge had serious concerns about the evidence of the defendant; in particular the witness statements did not identify any source of information or basis for the beliefs formed.

Comment

The decision reached in this case provides hope for claimants who have been unable to determine the relevant legal entities responsible in personal injury claims, where defendants have attempted to hide behind the veil of separate legal entities. It also provides a helpful insight into factors determining jurisdiction.
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