Jurisdictional Gateways in Personal Injury claims

Lady Christine Brownlie (Claimant) v Four Seasons Holdings Incorporated (Defendant) and FS Cairo (Nile Plaza) LLC (Proposed Defendant)

Kingsley Napley LLP acts for the Claimant in this case.  In July 2019, we made an application to correct/substitute the name of the Defendant pursuant to CPR 17 and/or CPR 19.  The need to do this arose because of a long delay by those representing the Defendant in identifying the correct company within the Four Seasons Group to be named as Defendant.

Mr Justice Nicol found in favour of Lady Brownlie, and accordingly she now has permission to amend her case, so as to abandon her claim against the current Defendant, and to proceed only against the Proposed Defendant.

Background

This is a long running case, which arises from the death of the late Sir Ian Brownlie QC, who was killed in a road traffic accident in Egypt in January 2010. 

The accident happened when the deceased and his family were on a “safari” excursion tour which had been arranged by the Four Seasons Hotel at Nile Plaza, where the party were staying.

Sir Ian’s widow, Lady Brownlie, brought proceedings in the High Court in London, naming Four Seasons Holdings Incorporated, the company at the head of the Four Seasons Group, as the Defendant.

The case raised arguments about the jurisdictional gateways for bringing an accident claim into the English Courts.  It passed through the High Court and the Court of Appeal, and in the summer of 2017 it arrived in the Supreme Court. 

The central issues were still the jurisdictional gateways, but the Supreme Court took the unusual step of ordering the Defendant to provide further disclosure concerning the correct corporate entity within the Four Seasons Group to be named as Defendant.  From the very outset Kingsley Napley had asked for clarification on this, as is normal in personal injury claims, but for reasons which remain unclear, the Defendant declined to cooperate.  The Defendant’s conduct was described by the Supreme Court as “ducking and weaving”, and made it very clear that the Defendant should provide evidence to determine the point once and for all. 

The Defendant’s disclosure revealed that another Four Seasons company, FS Cairo (Nile Plaza) LLC was the company responsible for the management of the hotel, and was thus the correct Defendant

The Supreme Court then discontinued the appeal, but before doing so it:

1. made some obiter dicta comments concerning the findings that it would have made had the correct Defendant been named in the proceedings; and

2. gave orders for directions to allow the Claimant to apply to the High Court for permission to amend/substitute the name of the Defendant. 

The Claimant’s applications were heard in a three day hearing before Mr Justice Nicol in July of 2019.

In summary, his findings were as follows:

1. As the claims are all governed by either Rome I or Rome II, the governing law will be Egyptian law. 
2. Insofar as any of the claims are time barred by Egyptian law, the grant of permission to substitute will not prevent the new Defendant from relying on such a defence.
3. .The Claimant has shown that it is reasonably arguable that her case is not time barred.  As such it is open to the Court to add the new Defendant as a party to the claim pursuant to CPR 19.2, and to order that the present Defendant ceases to be a party pursuant to CPR 19.2(3).
4. The court could exercise its powers to direct that the proposed Defendant (LLC) should be added as a party, and that the existing Defendant (Four Seasons Holdings Inc) should cease to be a party.
5. There is no “relation back” so it is not necessary for the Claimant to show that LLC does not have a reasonably arguable limitation Defence.
6. If the Judge was wrong on the limitation point the Claimant must have a reasonably arguable case that her claims were not time barred when the original action commenced, and so will be able to satisfy CPR rule 19.5(2)(a) and CPR 19.5(3)(a), because LLC is to be substituted for Holdings which (the Judge was satisfied) was sued in mistake for LLC.
7. Permission was given to the Claimant to amend her statements of case to change the name of the Defendant, delete her pleaded case under English law and replace it with reference to Egyptian law.
8. The claim in contract passes through the gateway in Practice Direction 6B paragraph (6)(a).
9. The claim in tort passes through the gateway in paragraph 9(a) of the Practice Direction.
10. The Claims in contract are reasonably arguable.
11. The claims in tort are reasonably arguable.
12. England and Wales is the proper forum for the claims in both contract and tort.
13. Permission given to the Claimant to serve her claim form out of the jurisdiction on LLC in Egypt (although it had previously been agreed with those representing the Defendant that service could be affected at their offices in London).

This was a resounding victory for the Claimant, who was also awarded her costs of the application.

However, the terms of the order was the subject of some very detailed submissions.  In essence, the Defendant sought permission for a “leap frog” appeal directly back to the Supreme Court, so that its obiter comments might be revisited. 

Nicol J. refused this request, but he did give permission for the Defendant to appeal to the Court of Appeal on 2 of 4 requested points, they are as follows:

1. The scope of the jurisdictional gateway for claims in tort in personal injury and fatal accident claims.
2. Whether the Claimant can discharge the burden of establishing that each of her claims, which can only be brought under foreign law (applicable pursuant to Rome I and Rome II) has a reasonable prospect of success by relying on the “presumption” that foreign law is the same as English law. 

Lady Brownlie has been litigating this case for 9 years.  During that time she has gone to the very top of the appeals process, come back down to the High Court, and is now going back up to the Court of Appeal – possibly to be followed by another hearing in the Supreme Court. All of this is more or less simply to decide whether the English Courts have jurisdiction.

The Brownlies chose the Four Seasons Hotel in Cairo because they believed it to be owned and managed by a major international company, and that if anything went wrong, it would be relatively straightforward to seek redress.  This Claim has shown that evidently, that it is not the case.  Something did go wrong – Sir Ian Brownlie was killed in a road traffic accident that was not his fault, and a legal claim that should have been resolved quite quickly has once again been put on hold pending a further appeal.

Terrence Donovan is the head of the Medical Negligence & Personal Injury team at Kingsley Napley LLP.  If you have been affected by any of the issues discussed in this blog, you can contact him at tdonovan@kingsleynapley.co.uk.  Alternatively, you can contact us on: 020 7814 1200 or email us at enquiries@kingsleynapley.co.uk .