U.K. Supreme Court Considers Jurisdictional Tests for Service of Claims Outside Jurisdiction
The case was taken by the widow (Lady Brownlie) of Sir Ian Brownlie QC, a distinguished English scholar and practitioner of international law, who died (together with his daughter) in a car accident while on holiday in Cairo in January 2010. Lady Brownlie and two of their grandchildren were also injured in the accident.
Lady Brownlie brought a series of claims, before U.K. courts, under contract law and in tort (for her own injuries and for her husband’s death) against Four Seasons Holdings Inc. (FS Holdings), the Canadian-based owner of the Egyptian hotel to whom she had booked the excursion.
Lady Brownlie sought permission to serve her claims to FS Holdings in Canada, relying on
– Rule 3.1(6)(a) of the U.K. Civil Procedure Rules* (which provides that a “claimant may serve a claim form out of the jurisdiction with the permission of the court […] where a claim is made in respect of a contract […] made within [U.K.] jurisdiction“); and
– Rule 3.1(9)(a) of the U.K. Civil Procedure Rules (which provides that a “claimant may serve a claim form out of the jurisdiction with the permission of the court […] where a claim is made in tort where damage was sustained, or will be sustained, within [U.K.] jurisdiction“)
and arguing that (i) she had booked the excursion through the Four Seasons Hotel Cairo by telephone from England; and (ii) that her damages were sustained in the U.K.
The present case is the culmination of a series of appeals on this point which saw the Court of Appeal permitting service for Lady Brownlie’s contractual claim and one of her claims in tort. FS Holdings, however, challenged this decision of the Court of Appeal before the Supreme Court.
In its judgment of 19 December 2017, the Supreme Court recalled, as a threshold issue, that in order to grant permission for the service of a claim form outside the U.K., it was necessary that: (i) the case fell within at least one of the “jurisdictional gateways” provided for by the Civil Procedure Rules (i.e. Rule 3.1 partially set out above); (ii) the claim had a reasonable prospect of success; and (iii) the courts of England were the forum conveniens.
In the case at hand, the Supreme Court found that since FS Holdings was not the owner of the Cairo hotel at the time of the accident, there was no realistic prospect of Lady Brownlie establishing that she had a contract with FS Holdings, or that the latter was liable for the driver’s negligence. Consequently, Lady Brownlie’s claims did not fulfil the second condition set out above since they did not “satisfy the general requirement that there should be a reasonable prospect of success“.
The Supreme Court therefore denied Lady Brownlie leave to serve her claims outside the U.K.
The interest of this case lies, however, in the fact that although it was not necessary for the Supreme Court to apply Rule 3.1(9)(a) to solve this case, it nevertheless chose to express some interesting obiter dicta with regard to this provision. These obiter dicta are, of course, not binding in future cases. They nonetheless offer valuable insight into the key differences of opinion in relation to the scope of the jurisdictional test in the U.K.
For instance, Lord Sumption and Lord Hughes considered that Lady Brownlie’s claims in tort did not fall within the scope of paragraph 3.1(9)(a). In essence, they remarked that Rule 3.1(9)(a) should disregard the secondary consequences of physical injuries and that, if the test was satisfied by the occurrence of subsequent physical or financial consequences in England, the result will be to confer jurisdiction by virtue of the claimant’s domicile.
Conversely, Lady Hale, Lord Wilson and Lord Clarke considered Lady Brownlie’s claims in tort, insofar as they sought damages for personal injury to herself and her late husband, did fall within paragraph 3.1(9)(a), The harm suffered (i.e., the ‘damage‘ referred to in paragraph 3.1(9)(a)) occurred in England even if the injuries were inflicted in Egypt. The three judges noted that the same person may suffer harm in more than one place and that it was not always easy to draw a distinction between direct and indirect damage.
* The full reference is paragraph 3.1 of Practice Direction 6B to the Civil Procedural Rules.