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Case and Comment
IF no substitute is negotiated for the Brussels Recast Regulation (1215/2012) on "Brexit", the provisions in the Civil Procedure Rules 1998 (CPR) for permission to serve claims out of the jurisdiction may assume a greater significance in future cross-border litigation. So the timing of the Supreme Court's decision in Four Seasons Holding Inc. v Brownlie [2017] UKSC 80, [2018] 1 W.L.R. 192 is apposite.
Sir Ian and Lady Brownlie, his daughter and two grandchildren were involved in a car accident in Egypt. Their chauffeur-driven car had been hired through the Four Seasons Hotel Cairo. Sir Ian and his daughter were killed. Lady Brownlie and the grandchildren were seriously injured but survived. Lady Brownlie sued Four Seasons Holdings Inc., a Canadian company, for damages for personal injury and for loss of dependency under the Fatal Accidents Act 1976. She also sued for damages as Sir Ian's executrix under the Law Reform (Miscellaneous Provisions) Act 1934. To proceed, she needed permission to serve out of the jurisdiction.
A claimant must jump three hurdles to obtain permission to serve out. First, the claim must have a reasonable prospect of success on the merits (CPR 6.37(1)(b)). This is the same test as for resisting summary judgment. Second, the claim must fit through a so-called jurisdictional "gateway" (CPR 6.37(1)(a)). These are listed at para. 3.1 of Practice Direction 6B (PD6B). Third, England must be the forum conveniens, or the "proper place", in which to bring the claim (CPR 6.37(3)).
Lady Brownlie fell at the first hurdle because she had sued the wrong entity. The defendant was the holding company in the Four Seasons Group, and neither owned nor operated the Cairo hotel. What the Supreme Court said on the jurisdictional gateways was therefore obiter dicta only. Nonetheless, this is the aspect of the judgment which will pique interest, and accordingly is the focus of this note.
The Supreme Court divided 3:2 on how to interpret gateway 9(a) (PD6B, para. 3.1(9)(a)). This allows for claims made in tort to be served out where "damage was sustained or will be sustained within the jurisdiction". The question was how widely "damage" should be understood.
Lady Hale, Lord Wilson and Lord Clarke held that the ordinary and natural meaning of...