I.Introduction
The Brownlie case[1], subject of comment on jurisdictional aspects of “damage” in tortious claims, centered on the rules applicable on service out where tort claims have connections with UK Court, only to the extent where claimant suffers consequential damages within its territory.
II. Brief Description of Facts
Litigation before the High Court of England and Wales[2] commenced between Lady Christine Brownlie, widow of renowned international lawyer Sir Ian Brownlie QC and Four Seasons Holdings Incorporated (Canadian Corporation) running a chain of hotels by the name and style of Four Seasons. She along with her husband, daughter and grandchildren suffered a tragic accident in Cairo, Egypt, on a holiday. Their excursion on 3-1-2010 resulted in a car crash whereby Lady Brownlie and the grandchildren survived serious injuries. However, Sir Ian Brownlie and their daughter died.
It is Lady Brownlie’s evidence that on her previous visit she had taken a brochure, published and circulated by Four Seasons advertising safari tours provided by them. She contacted the hotel before leaving England for the holiday through telephone and made a booking to hire a chauffeur-driven vehicle for an excursion with the concierge of the hotel.
Lady Brownlie’s claims were against — (a) Four Seasons Holdings Inc., the holding company (first defendant); (b) Nova Park SAE (Egyptian company), owner of the hotel building (as per Lady Brownlie’s solicitors) (second defendant).
The three tortious claims by Lady Brownlie, through service out jurisdiction after her return to England against defendants (Canadian) were for (a) “personal claim” on account of severe injuries suffered on her person; (b) being a dependent, for loss of her husband under Fatal Accidents Act, 1976; and (c) as an executrix of the estate of Sir Brownlie, for the loss and damages under the Law Reform (Miscellaneous Provisions) Act, 1934.
III. Applicable Rules of Jurisdiction
Prior to the Brownlie case[3], English courts since 1852 opined that jurisdiction in tort cases was delimited by the power of the court[4], for permission for grant of service on the defendant subject to the claimant’s proof that a serious issue existed for trial by England courts (forum conveniens).[5]
According to English common law, English courts have adjudicatory competence on the basis of “submission” and “presence”. The service of proceedings on a foreign-based defendant is possible wherein the defendant is domicile of European Union (EU) member State/another part of UK. As per Civil Procedure Rules (CPR) (Rules 6.32 and 6.33), the claimant is not required to take the permission of the court and Brussels I Regulation Recast is applicable.
However, in a cross- border commercial matter wherein the defendant is not domiciled, the claimant needs a prior permission of the court before submission of claim form (outside jurisdiction) and an English Court, may grant permission, as per the CPR (Domestic Law of UK).[6] Exercise of discretionary powers[7] by the court to allow service out are subject to the main obligations being satisfied by the claimant. These mandatory service out conditions on a foreign-based defendant are[8]—
(i) Application for permission (Rule 6.36) setting out grounds in Para 3.1 of Practice Direction 6-B. “Good arguable case” to be tested on the ground that at least one of the claims by the parties falls within the “gateways” of Practice Directions.
(ii) Belief that the claim has a reasonable prospect of success.
(iii) A “reasonable issue” must exist between the claimant and defendant and “reasonably” tried on merits by the court.
Discretion is exercised once the court believes that England and Wales are forum conveniens (proper place) for the claim to be brought, by applying the test in Spiliada Maritime Corpn. v. Cansulex Ltd.[9].
In Lady Brownlie case[10], the application for permission of the claim founded on contract to serve out was based on Practice Direction 6-B, Para 3.1(6)(a), contending that the contract was made within jurisdiction. Her claim founded on tort was based on Practice Direction 6-B, Para 3.1(9)(a), further arguing consequential losses were suffered in England. She placed reliance on an earlier decision[11] to support that consequential damage sustained by her in England was sufficient to satisfy requirements of CPR Practice Direction 6-B Para 3.1(9)(a) gateway. However, defendants supported the decision in Erste Group Bank AG (London) v. JSC (VMZ Red October)[12] wherein English courts determined the meaning of damage preferring direct damage interpretation [in torts – CPR Para 3.1(9)(a)] in line with the Brussels I Regulation Recast.
In my opinion, a fading line of distinction distinguishes direct damage (which completes cause of action) from damage that is consequential leaving applicability to be an open question.
IV. Interpretation of Rules on Jurisdiction and Decision
Claimant, resident of England brought the claim in England against the defendant of a Canadian Holding Company, on the ground that the contract for excursion was with defendant or that defendant was vicariously liable for fatal accident due to driver’s negligence.
The analysis of English Court’s approach is primarily for the determination of “damage” as per CPR Practice Direction 6-B Para 3.1(9)(a), regarded as obiter dicta.
The Court of Appeal[13] unanimously upheld direct damage suffered by the claimant to be outside tort gateway however, the loss of dependency claim was well within its confines.
The Supreme Court[14] opined that Lady Brownlie stumbled on the first aspect to provide the prerequisites of service out as first defendant, the non-trading holding company were neither owners nor operated the Cairo Hotel.
The interpretation of the “tort gateway” as per Practice Direction 6-B, Para 3.1(9)(a) is divided in the ratio of 3:2.
The majority opinion concluded upon the ordinary and natural meaning of gateway, to include, “all detriment, physical, financial and social, which the plaintiff suffers as a result of the tortious conduct of the defendant”. The Court opined that despite personal injury and death of Sir Brownlie in Egypt, the consequential damage (funeral and medical expenses, pain, suffering and loss of amenity) were suffered in England.
It is my view that the majority opinion has adopted a very wide approach in determining the gateway to test damage suffered to serve out. Any event occurring in England sans “significant damage” will not hold good to prove forum conveniens. It has trodden away from “direct damage”[15] since the applied gateway only mentioned “damage”. No differentiation of direct and indirect/consequential damage is clear in the absence of lucid and precise meaning of the gateway being provided, leading to an unreliable test. This wide approach poses a risk of opening floodgates to many applications to serve out of the jurisdiction, by interfering with the sovereignty of another State. The required cautious approach is not being exercised by the UK jurisdiction, leaving the concept of damage open to questions since the Court has not discarded it by clearly defining the boundaries of tort gateway. The opinion of rejecting the consistency between the gateway and Brussels I Regime is however a test for if the history behind the draft of the gateway is being correctly applied.
I agree with the minority view to the extent of supporting restrictive application of “damage” as personal injury. However, the universal jurisdiction of English courts on tort claims suffered anywhere is vague.
V. Conclusion
Through the majority view, whether expansive interpretation by English courts of tort gateways should be abandoned or that ambiguity can be removed if the meaning is brought within the scope of the interpretation under Article 7(2) Brussels I Regulation for achieving certainty in a situation gripped with the conflict of laws. It is also hard to conclude the approach which the courts will finally adopt in order to attain a balance in the situation of the claimant and defendant considering if the test of forum conveniens is applicable. It can be said that the Supreme Court missed the bus for determining scope of jurisdiction – service out in tortious claims.
* BA LLB (Hons.) Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, Delhi (Batch of 2019).
[2] Ibid.
[4] R. 6.36, Civil Procedure Rules.
[5] Seaconsar (Far East) Ltd. v. Bank Markazi Jomhouri Islami Iran, (1994) 1 AC 438 : (1993) 3 WLR 756 HL(E) (Seaconsar).
[6] (2018) 1 WLR 192; R. 6.37, Civil Procedure Rules.
[7] Lord Collins of Mapesbury et al., Dicey, Morris & Collins on the Conflict of Laws, 15th Edn., Sweet & Maxwell, 2012.
[8] R. 6.37, Civil Procedure Rules, UK.
[9] 1987 AC 460 : (1986) 3 WLR 972 HL(E)
[11] Booth v. Phillips, (2004) 1 WLR 3292: 2004 EWHC 1437 (Comm)
[12] [2015] EWCA Civ 379; [2015] 1 CLC 706, CA
[13] Brownlie v. Four Seasons Holdings Inc., (2016) 1 WLR 1814
[15]Dumez France SA v. Hessische Landesbank, (Case C-220/88) ,1990 ECR I-49; Marinari v. Lloyds Bank Plc., 1996 QB 217 : (1996) 2 WLR 159
