Case Study – Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665

News | Mon 20th Jul, 2015

The Court of Appeal judgment in Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665  is a timely reminder as the holiday season begins of the importance of getting things right in claims involving an accident abroad It also has a reminder of note to anyone who prepares evidence in interlocutory proceedings in any sort of claim. Natasha Partos considers the lessons to be learnt.

The claim in Brownlie arose out of a motor accident on a trip organised by a hotel concierge during a holiday in Egypt in 2010. Tragically Sir Ian Brownlie, the 77 year old leading international lawyer, was killed and Lady Brownlie, the claimant, was injured. Lady Brownlie sought damages on behalf of herself for her own injuries and as a dependant of her husband, and also on behalf of her husband’s estate. As the trip had been arranged in a telephone call to the concierge from England before the start of the holiday she sought to bring the claim within the Brussels Convention provisions applicable under Rome I and Rome II even though the accident happened outside of the EU, in Egypt.

In order to be granted permission to serve a claim form outside of the jurisdiction, a claimant must persuade the Court that there is a serious issue to be tried and that England is the proper place to bring the claim CPR, r.6.36 and r.6.37(1)). Furthermore, when a claimant can show that a claim has arisen in Europe and falls under the Brussels Convention the claimant must satisfy the Court that one of the grounds in CPR PD 6B 3.1 ‘the jurisdiction gateways’ has been established. Lady Brownlie sought permission to issue proceedings against the Appellant outside of the jurisdiction on the basis that the contract had been made within the jurisdiction and was governed by English law, and on the basis that the damage was suffered within the jurisdiction.

In Brownlie the Court of Appeal accepted that the contract had been completed in England and that. therefore the Brussels Convention applied. The Court then went on to consider whether Lady Brownlie’s claims in tort satisfied the jurisdictional gateway of CPR. PD 6B 3.1(9)(a) that ‘damage was sustained within the jurisdiction’. Where a court has jurisdiction under the Brussels Convention it cannot decline that jurisdiction on the basis that it is a forum non conveniens and that there is a more convenient forum elsewhere. For that reason the test of where damage was sustained is stricter than in non-Convention cases. As this was a Convention case the court did not accept the argument that the continuation of damage suffered by Lady Brownlie in England was sufficient for the purposes of showing that she had ‘sustained damage’ in England.

The Court held that Lady Brownlie’s claims for personal injury and claim for loss and damage suffered by her late husband, on behalf of his estate, ought to have been brought in Egypt where the stem of the ‘damage’ was suffered. However, the court distinguished Lady Brownlie’s Fatal Accident Claim as a dependant of Sir Ian as they accepted that the damage of the lost dependency had been suffered in England.  

The case contains a number of important reminders for those of us dealing with claims for accidents abroad:

• The need to consider carefully at the outset whether a ‘good arguable case’ can be shown to get a claim through one of the jurisdictional gateways for the purposes of establishing jurisdiction, and that the good arguable case must be a much better argument on the material available than the alternative argument, the so-called ‘Canada Trust gloss’
• The need to consider whether the prospects of success are going to be enhanced or harmed by trying to bring a claim within the terms of the Brussels Convention and Rome I or Rome II, compared with the non-Convention provisions, which established jurisdiction for a death in Egypt in Booth v Phillips [2004] WLR 3292.
• The need to be very careful when preparing evidence for the court in interlocutory proceedings to ensure that it complies with the CPR.

The final point of interest above is a gentle reminder to all of us who engage in litigation that the courts can be highly critical of evidence which does not comply strictly with the CPR. The Appellant’s solicitors failed to comply with CPR.32 or paragraph 18(2) of the Practice Direction to CPR.r32. which set out that witness statements which contained hearsay must explain the source of the evidence. The Court of Appeal reminds us that courts are not obliged to accept deficient evidence and that courts are entitled to place little weight or no weight on statements which do not comply with the relevant rules.