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
