Category: European

Four Seasons Holdings Incorporated v Brownlie: SC 19 Dec 2017

The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated in Canada, and denied that the English court had jurisdiction. Each party appealed against a judgment allowing service under the contract and 1976 Act claim, but disallowing it under the 1934 Act claim and for her own personal injuries.
Held: The Hotel company’s appeal succeeded. The negligence was governed by the law of Egypt, and the 1976 Act applied only to a tort not governed by English law. The Rome II Regulation dealt with applicable law, not jurisdiction, and could not support her claims.
The claimant had failed to bring her claims within the jurisdictional gateways which would allow service, and had not established that a viable claim existed. The Hotel had proved not to be owned by the appellant company, and any claim in contract against it must fail. On the one hand she pleaded that the contract was ‘made within the jurisdiction’ and on the other that the damage was ‘sustained within the jurisdiction’.
In determining an issue about jurisdiction, the traditional test has been whether the claimant had ‘the better of the argument’ on the facts going to jurisdiction. The Court restated that test: ‘ the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.’

Judges:

Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes

Citations:

[2017] UKSC 80, [2018] 1 WLR 192, [2018] 2 All ER 91, UKSC 2016/0045, UKSC 2015/0175

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, SC 2017 May 09 am Video, SC 2017 May 09 pm Video, SC 2017 Jul 20 am Video, SC 2017 Jul 20 pm Video

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934, Fatal Accidents Act 1976, Regulation (EC) 84/2007 of the European Parliament and of the Council of 11 July 2007

Jurisdiction:

England and Wales

Citing:

Mentioned – Malik v Narodni Banka Ceskoslovenska 1946
(Orse Malik v National Bank of Czechoslovakia) The evidential standard for establishing that one of the jurisdictional gateways applied was the civil burden of proof. . .
Cited – Vitkovice Horni a Hutni Tezirstvo v Korner HL 1951
The ordinary principles of international comity were invaded when courts permitted service out of jurisdiction and that the courts should therefore approach with circumspection any application for leave to serve a foreigner out of the jurisdiction. . .
At CA – Brownlie v Four Seasons Holdings Incorporated CA 3-Jul-2015
The claimant commenced an action here after suffering injury whilst in Egypt on an excursion organised under the control of the defendant. The defendant denied jurisdiction as regards the damage suffered.
Held: The defendant’s appeal was . .
Cited – Entores Ltd v Miles Far East Corporation CA 1955
The plaintiff traded from London, and telexed an offer to purchase cathodes to a company in Holland, who signified their acceptance by return, again by telex. Entores later wanted to sue the defendant, the parent company of the Dutch party. It was . .
Cited – Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran HL 15-Oct-1993
A plaintiff must show that there is a ‘serious issue for trial’ to support and justify an application for overseas service. The standard of proof in respect of the cause of action relied on is whether, on the evidence, there was a serious question . .
Cited – Egon Oldendorff v Libera Corporation 1996
Conflict of laws – ‘It is sufficient to say that the party relying upon art. 3 must demonstrate with reasonable certainty that the parties have chosen a particular law as the governing or applicable law. ‘ . .
Cited – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
Cited – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
Cited – Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Cited – British Arab Commercial Bank Plc v Bank of Communications and Another ComC 17-Feb-2011
Blair J said: ‘It is not in dispute that, . . it must be a ‘real choice’ which the parties had a clear intention to make. A tacit choice must only be found where it is reasonably clear that it is a genuine choice by the parties (See Clarke J’s . .
Cited – Adams v Lindsell KBD 5-Jun-1818
No Contract by Post until Acceptance Received
The defendant sent his offer of wool for sale to the plaintiff by post. The plaintiff’s acceptance was at first misdirected. Before receiving the reply the defendant had sold the wool elsewhere, but this was only after he would have received the . .
At first Instance – Brownlie v Four Seasons Holdings Incorporated QBD 19-Feb-2014
The claimant and her husband had been in a car crash while on holiday in Egypt. The tour was booked in London. The defendant denied jurisdiction. . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Cited – Dunlop v Higgins HL 24-Feb-1848
Contracts made by post are complete when and where the letter of acceptance is posted.
Lord Cottenham LC said that the explanation for the contract arising was that there was a usage of trade to accept a postal offer by post. The Post Office . .
Cited – Wong Mee Administratrix of The Estate of Ho Shui Yee, Deceased v Kwan Kin Travel Services Ltd, China Travel Services Co (Zhong Shan) And, Pak Tang Lake Travel Services Co (Doumen County) Co PC 6-Nov-1995
The appellant’s daughter died in an accident whilst on holiday in China from Hong Kong on a trip booked with the respondent.
Held: Lord Slynn said: ‘ . . the issue is thus whether . . [the package tour operator] undertook no more than that . .
Cited – Chandler v Cape Plc CA 25-Apr-2012
. .
Cited – AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
Cited – Moran v First Choice Holidays QBD 2005
. .
Cited – Parker v Tui UK Ltd CA 27-Nov-2009
. .

Cited by:

Cited – Goldman Sachs International v Novo Banco SA SC 4-Jul-2018
A banking facility was provided under a contract applying English law and jurisdiction. The parties now disputed whether on an assignment the dispute was to be resolved under Portuguese law.
Held: Recognition in the United Kingdom of measures . .
See Also – Brownlie v Four Seasons Holdings Inc QBD 1-Oct-2019
Application to substitute defendant. . .
Cited – Soleymani v Nifty Gateway Llc ComC 24-Mar-2022
The claimant sought declaratory relief as to the basis of a purchase after he placed a bid for a blockchain-based non-fungible token (also known as an NFT) associated with an artwork by the artist known as Beeple titled ‘Abundance’. The court was . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Jurisdiction, European

Updated: 03 April 2022; Ref: scu.601508

Spain v Commission – C-81/16: ECJ 20 Dec 2017

Competition – State Aid Competition – State Aid – Appeal – State aid – Digital television – Aid for the deployment of digital terrestrial television in remote and less urbanised areas – Subsidies granted to operators of digital terrestrial television platforms – Decision declaring the aid incompatible in part with the internal market – Concept of ‘State aid’ – Advantage – Service of general economic interest – Definition – Discretion of the Member States

Citations:

C-81/16, [2017] EUECJ C-81/16P

Links:

Bailii

Jurisdiction:

European

European, Media

Updated: 02 April 2022; Ref: scu.602113

Spain v Council – C-521/15: ECJ 20 Dec 2017

Economic and Monetary Policy Economic and Monetary Policy – Action for annulment – Implementing Decision (EU) 2015/1289 – Imposition of a fine on a Member State in the context of economic and budgetary surveillance of the euro area – Manipulation of statistical data relating to the deficit of the Member State concerned – Jurisdiction – Regulation (EU) No 1173/2011 – Article 8(1) and (3) – Delegated Decision 2012/678/EU – Articles 2(1) and (3) and 14(2) – Regulation (EC) No 479/2009 – Articles 3(1), 8(1), 11 and 11a – Rights of defence – Charter of Fundamental Rights of the European Union – Article 41(1) – Right to good administration – Articles 121, 126 and 136 TFEU – Protocol No 12 on the excessive deficit procedure – Existence of an infringement – Misrepresentations – Determination of the fine – Principle that penal provisions may not have retroactive effect

Citations:

[2017] EUECJ C-521/15

Links:

Bailii

Jurisdiction:

European

European, Human Rights

Updated: 02 April 2022; Ref: scu.602114

Schlomp v Landratsamt Schwabisch Hall: ECJ 20 Dec 2017

Area of Freedom, Security and Justice – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Lugano II Convention – Lis pendens – Concept of court – Arbitration authority under Swiss law, responsible for the conciliation procedure prior to all substantive proceedings

Citations:

ECLI:EU:C:2017:993, [2017] EUECJ C-467/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602109

Prequ Italia Srl v Agenzia delle Dogane e dei Monopoli: ECJ 20 Dec 2017

Free Movement of Goods – Customs Union – Reference for a preliminary ruling – Principle of protection of the rights of the defence – Right to be heard – Regulation (EEC) No 2913/92 – Community Customs Code – Article 244 – Recovery of a customs debt – Lack of prior hearing of the addressee before the adoption of an amended tax assessment – Right of the addressee to obtain suspension of the implementation of the amended tax assessment – Lack of automatic suspension in the event of the bringing of administrative proceedings – Reference to the conditions provided for in Article 244 of the Customs Code

Citations:

ECLI:EU:C:2017:1010, [2017] EUECJ C-276/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602105

Sahyouni v Mamisch: ECJ 20 Dec 2017

Area of Freedom, Security and Justice – Judicial Cooperation In Civil Matters – Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) No 1259/2010 – Enhanced cooperation in the area of the law applicable to divorce and legal separation – Recognition of a private divorce obtained before a religious court in a third country – Scope of that regulation

Citations:

ECLI:EU:C:2017:988,, [2017] EUECJ C-372/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602108

Deister Holding v Bundeszentralamt fur Steuern: ECJ 20 Dec 2017

Freedom of Establishment – Taxation – Approximation of Laws – References for a preliminary ruling – Direct taxation – Freedom of establishment – Directive 90/435/EEC – Article 1(2) – Article 5 – Parent company – Holding company – Withholding tax on profits distributed to a non-resident parent holding company – Exemption – Fraud, tax evasion and abuse – Presumption

Citations:

ECLI:EU:C:2017:1009, [2017] EUECJ C-504/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602080

Geoclimadesign v EUIPO – Geo (Geo): ECFI 14 Dec 2017

(Judgment) European Union mark – Annulment proceedings – European Union word mark GEO – Absolute grounds for refusal – Distinctiveness – Lack of descriptive character – Article 7 (1) (b) and (c) of the Regulation ( EC) No 207/2009 [now Article 7 (1) (b) and (c) of Regulation (EU) No 2017/1001) – Article 52 (1) (a) of Regulation No 207/2009 Article 59 (1) (a) of Regulation No 2017/1001)

Citations:

T-280/16, [2017] EUECJ T-280/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602090

Falbert and Others: ECJ 20 Dec 2017

Approximation of Laws – References for a preliminary ruling – Information procedure in the field of technical rules and regulations – National legislation clarifying or introducing a prohibition on unauthorised offering of gaming, lotteries and betting and introducing a prohibition on unauthorised offering of advertising for gaming, lotteries and betting

Citations:

C-255/16, [2017] EUECJ C-255/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602088

Chudas v DA Deutsche Allgemeine Versicherung Aktiengesellschaft: ECJ 14 Dec 2017

Judicial Cooperation In Civil Matters – European Enforcement Order : Judgment – Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 805/2004 – Scope – European Enforcement Order for uncontested claims – Enforcement orders capable of being certified as European Enforcement Orders – Decision on the amount of costs related to the court proceedings in a judgment not concerning an uncontested claim – Excluded

Citations:

C-66/17, [2017] EUECJ C-66/17

Links:

Bailii

Statutes:

Regulation (EC) No 805/2004

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602072

Global Starnet v Ministero dell’Economia e delle Finanze: ECJ 20 Dec 2017

Freedom of Establishment – Freedom To Provide Services Free Movement of Capital – Reference for a preliminary ruling – Freedom to provide services, freedom of establishment, free movement of capital and freedom to conduct a business – Restrictions – Award of new licences for the online operation of gaming – Principles of legal certainty and protection of legitimate expectations – Judgment of the Constitutional Court – Whether or not the national court is obliged to refer a question to the Court of Justice for a preliminary ruling

Citations:

ECLI:EU:C:2017:985, [2017] EUECJ C-322/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.602091

British Academy of Songwriters, Composers and Authors and Others, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills: Admn 19 Jun 2015

The claimants, representatives of musicians complained of the scheme in section 28B of the 1988 Act: ‘creating an exception to copyright based upon personal private use. Henceforward, any person who legitimately acquires content (music, film, books) can copy that work for his or her own private use without infringing copyright. It can be copied onto other formats or stored in the cloud provided it is for private, non-commercial use.’ They said that the exception was made without compensation and deprived them of their rights without aproper basis. The Court was asked: ‘ Would the introduction of a limited private use exception cause no more than minimal or zero harm?’
Held: The choice made as to implementation was an exercise of discretion by the respondent.

Judges:

Green J

Citations:

[2015] EWHC 1723 (Admin), [2015] WLR(D) 268

Links:

Bailii, WLRD

Statutes:

Copyright Designs & Patents Act 1988 28B, Directive 2001/29

Jurisdiction:

England and Wales

Intellectual Property, European

Updated: 02 April 2022; Ref: scu.549256

Watts, Regina (on the Application of) v Bedford Primary Care Trust and others: Admn 1 Oct 2003

The claimant sought hip-replacement treatment. She was first told that she would have to wait a year. As her lawyers pressed the respondent, she looked at obtaining treatment in France. As she decided to take the treatment, the respondent reduced the waiting time to four months. She sought judicial review, and to recover the cost of the treatment.
Held: The claimant had no remedy in domestic law. The respondent could refuse the certificate which would allow her to recover the cost for lack of medical necessity only if the the same treatment could be offered locally without an undue waiting time. In this case, the one year wait was unreasonable, but the four months was not undue, and a certificate had been properly refused. Though the claimant failed on the particular facts, her argument was correct.

Judges:

Munby J

Citations:

Times 03-Oct-2003, [2003] EWHC 2228 (Admin), [2003] EWHC 2401 (Admin), Gazette 16-Oct-2003, [2006] 1 QB 667

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Applied – Geraets-Smits v Stichting Ziekenfonds VGZ Peerbooms v Stichting CZ Groep Zorgverzekeringen ECJ 12-Jul-2001
Where a member of a sickness scheme sought treatment in another member state, it was proper to require prior authorisation, but any conditions imposed had to be justifiable and proportionate. In this case the scheme required the recognition of the . .
Cited – Muller-Faure v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA, van Riet v Onderlinge Waarborgmaatschappij ZAO Zorgverzekeringen ECJ 13-May-2003
Europa Freedom to provide services – Articles 59 of the EC Treaty (now, after amendment, Article 49 EC) and 60 of the EC Treaty (now Article 50 EC) – Sickness insurance – System providing benefits in kind – . .
Cited – Regina v Cambridge and Huntingdon Health Committee Ex Parte B CA 10-Mar-1995
A decision by a Health Authority to withhold treatment for a patient could be properly so made. It was not ordinarily to be a matter for lawyers. A Health Authority’s withholding of treatment, which might not be in a child’s simple best interests . .
Cited – Regina v Secretary of State for Social Services ex parte Hincks 1980
The respondent’s duties under s3 of the 177 Act are not absolute. . .
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – North West Lancashire Health Authority v A D and G CA 29-Jul-1999
A decision not to fund gender re-assignment surgery was operated as a blanket policy without proper regard for individual cases and so was unlawful as an effective fetter on the discretion which the Health Authority was obliged to exercise. A lawful . .
Lists of cited by and citing cases may be incomplete.

Health, European, Human Rights

Updated: 02 April 2022; Ref: scu.186551

Lopez Pastuzano v Delegacion del Gobierno en Navarra: ECJ 7 Dec 2017

Area of Freedom, Security and Justice : Judgment – Reference for a preliminary ruling – Status of third-country nationals who are long-term residents – Directive 2003/109/EC – Article 12 – Adoption of a decision to expel a long-term resident – Matters to be taken into consideration – National legislation – Failure to take those matters into consideration – Whether compatible

Citations:

ECLI:EU:C:2017:949, [2017] EUECJ C-636/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.601077

Tulliallan Burlington v Euipo – Burlington Fashion (Burlington) – T-120/16: ECFI 6 Dec 2017

Intellectual, Industrial and Commercial Property : Trade Marks : Judgment -EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark Burlington – Earlier national word marks BURLINGTON and BURLINGTON ARCADE – Earlier EU and national figurative marks BURLINGTON ARCADE – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – Use in the course of trade of a sign of more than mere local significance – Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001) – Unfair advantage taken of the distinctive character or the repute of the earlier trade marks – Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001)

Citations:

ECLI:EU:T:2017:873, [2017] EUECJ T-120/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 02 April 2022; Ref: scu.601084

Ukraine v Yanukovych (Appeal Relating Solely To The Amount of The Costs Set At First Instance : Order): ECJ 23 Nov 2017

Citations:

C-550/17, [2017] EUECJ C-550/17 – CO

Links:

Bailii

Jurisdiction:

European

Cited by:

See Also – Ukraine v Yanukovych ECJ 23-Nov-2017
Appeal Relating Solely To The Amount of The Costs Set At First Instance : Order . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 02 April 2022; Ref: scu.601060

The Secretary of State for Work and Pensions v Fileccia: CA 24 Nov 2017

The court was asked as to the interpretation of the phrase ‘a difference in views’ for the purposes of Article 6(2) of Regulation 987/2009 [2009] OJ L284/1 (the ‘implementing Regulation’) and the nature of the evidence necessary to establish such a difference in views.

Judges:

Sales, Lindblom, Asplin LJJ

Citations:

[2017] EWCA Civ 1907

Links:

Bailii

Statutes:

Regulation 987/2009

Jurisdiction:

England and Wales

European, Benefits

Updated: 01 April 2022; Ref: scu.599716

Dimos Zagoriou (Enforceable Decision of The European Commission Ordering The Recovery of Sums Paid): ECJ 9 Nov 2017

Judgment – Reference for a preliminary ruling – Enforceable decision of the European Commission ordering the recovery of sums paid – Article 299 TFEU – Enforcement – Implementing measures – Identification of the competent national court to hear disputes regarding enforcement – Identification of the person on whom the pecuniary obligation rests – Conditions for application of the national procedural rules – Procedural autonomy of the Member States – Principles of equivalence and effectiveness

Citations:

C-217/16, [2017] EUECJ C-217/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 01 April 2022; Ref: scu.599675