EUPillar Lady Chritine Brownlie v Four Seasons Holdings Incorporated [2015] EWCA Civ 665

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 [...] 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 the English common law rules). An appeal was partly allowed, and partly dismissed by the Court of Appeal. In this context, Lady Justice Arden held: “86 Thus far, I have accepted the appellant's case. I accept Mr Palmer's submission that Lady Brownlie's personal claim and the LRMPA34 claim must be brought in Egypt. However, for the reasons given in this paragraph, I do not consider that this conclusion applies to the FAA76 claim. […]: i) The claim under the FAA76 is a separate statutory cause of action: see Cox v Ergo , above. ii) The fact Lady Brownlie was involved in the accident is not an ingredient in this separate cause of action: she would have had the FAA76 claim even if she had not been in Egypt at the time of the accident. iii) Sir Ian Brownlie's cause of action arising by virtue of the LRMPA34 is vested in his personal representatives acting on behalf of his estate. It was not essential that Lady Brownlie should have been his personal representative. Personal representatives have a different capacity when they enforce a FAA76 claim from when they enforce the claim of the deceased. iv) To obtain an award of damages under the FAA76, something more must be shown that would not be shown in an action brought by Sir Ian Brownlie's estate, namely the measure of dependency. Lady Brownlie has to show not merely that the appellant was liable to Sir Ian Brownlie, but also that she was dependent on the deceased. v) Even though the claim must be brought by the deceased's personal representatives, if she succeeds, the amount she recovers will form no part of Sir Ian Brownlie's estate. vi) Her claim for damages is not a derivative claim in the way that in Dumez the shareholder's claim for reflective loss was derived from the subsidiary's loss. A reflective loss claim simply mirrors the loss of the original victim: dependency does not have to be shown. vii) The holding in Dumez cannot apply to all claims that could not have been made if the accident had not happened. For instance, it clearly could not apply to a contract claim under a life insurance policy on the life of Sir Ian Brownlie to which Lady Brownlie was entitled. viii) The risk of inconsistent findings by different courts can therefore never be wholly eliminated if there is a common issue of fact but a different cause of action. ix) Lady Brownlie's FAA76 claim is not properly described as for consequential loss. It is for an independent loss. 87 If I am correct in my conclusion regarding Lady Brownlie's FAA76 claim, she has established a good arguable case that English law applies to it. It is unnecessary to consider Article 4(3) of Rome II in relation to this claim.” [86-87].