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

Summary

A traffic accident occurred in Egypt on 3rd January 2010. As a result of the accident, Professor Sir Ian Brownlie and his daughter, Rebecca, died. Their excursion was organised by Four Seasons Hotel Cairo at Nile Plaza. The English proceedings were commenced in December 2012. The claim was brought by Lady Bronwlie, who was also in the car with her husband. She claimed damages against the first defendant, Four Seasons Holdings Incorporated. The defendant was Canadian company which runs the Four Season chain. The question was whether the English had jurisdiction to hear and determine the claims (contractual and tortious). On 31st July 2013, Master Cook held that the English court had no jurisdiction. In this context, he held: “45. There is also merit pending an outstanding appeal to the Supreme Court and the case Cox v. Ergo Versicherung AG [2012] EWCA 854 , in Ms Kinsler submission that the Fatal Accidents Act cannot provide the basis for a claim in which the death occurs out of the jurisdiction. 46. It follows that the Claimant is unable to establish of reasonable prospect of success against the Defendant in any of the three claims in tort”.” (quoted in [2014] EWHC 273 (QB) [113]) Master Cook’s judgment was reversed by the High Court, holding that England is clearly the most appropriate forum for the trial (i.e. jurisdiction exercised under English common law rules). Mr Justice Tugendhat held that: 107 There is no dispute that the claims advanced in this action by the Claimant include claims in tort. There is also no dispute that the law applicable to the claims in tort will be determined by Regulation (EC) 84/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non contractual obligations (Rome II) which applies (by article 32 ) from 11 January 2009 at the latest. […] 109 The candidates for applicable law would appear to be the laws of England, alternatively Egypt, ( Article 4(1) ) being the places where damage occurred, and the law of Canada ( Article 4(3) ) being the law of the country in which the Defendant is resident. 110 In the present case there was a pre-existing relationship with the parties, albeit not a contract between them, and that relationship was closely connected with the tort in question. The pre-existing relationship was that the Claimant was booked to stay at the Hotel, although the booking was made indirectly through Cox & King Ltd. But as already stated, the evidence before me does not show what law governed the arrangements made for that booking by Cox & King Ltd, nor with whom Cox & King Ltd had dealt. 111 There is no evidence before the court of any law other than English law. So for present purposes I shall presume that the laws of Egypt and Canada are similar to English law. 112 Whether or not this court has jurisdiction to entertain this claim does not depend upon the Claimant establishing that the law applicable to the law in tort is any particular law. The relevance of the law applicable to the tort is to separate issues, as to whether there is a sufficiently strong case on the merits of the claim, and what is the appropriate place to try the action. It does not seem to me that I need form a view as to which law applies, save to say that it seems unlikely that there will be any relevant issue of Egyptian law. […] 125 Although the location of the accident was Egypt, it seems unlikely that there will be any issue of fact relating to the accident itself. Nor is Egyptian law likely to apply. In the light of the conclusions I have reached it has not been necessary for me to consider whether the relevant considerations include the troubled political situation in Egypt described by Mr Donovan in his first witness statement.” [107, 109-112, 125] An appeal was partly allowed, and partly dismissed by the Court of Appeal.