Personal injury

The claimant was injured and her husband killed while on an excursion in Egypt which they had booked through their hotel.

She issued proceedings in contract and tort against the defendant Canadian company on the basis that it was owner of the hotel. In order to serve the claim form on the defendant in Canada, the claimant required permission from the court for service outside England and Wales. The claimant was granted permission and the defendant appealed. The Court of Appeal, Civil Division, allowed the defendant’s appeal in part. The appeal succeeded in respect of the claim for injuries and under the Law Reform (Miscellaneous Provisions) Act 1934 as the claimant could not show that ‘damage’ had been sustained within England since the accident had occurred in Egypt. The appeal failed in respect of its challenge to the contractual claim and the tort claim under the Fatal Accidents Act 1976 (FAA 1976). The defendant appealed and the claimant cross-appealed.

Appeal allowed.

Issues and decisions

(1) Whether the contractual claim met the requirements for service out of the jurisdiction based on CPR PD6B, para 3.1(6)(a) namely, that the contract had been made within the jurisdiction and the further requirement under CPR 6.37(1)(b) that there should be a ‘reasonable prospect of success’.

The jurisdictional gateway of para 3.1 6(a) depended on the court being satisfied of some jurisdictional fact. A relevant contract had to have been made or breached in England or relevant damage sustained there. There were two closely related problems about that. The first was a legal one, namely that none of the law’s established evidential standards satisfactorily met the case. The second was a practical one, namely that some jurisdictional facts, for example the existence of the contract said to have been made or breached in England, might be in issue at trial if the case was allowed to proceed, when they would in all probability be determined on fuller material than was likely to be available at the interlocutory stage. The same was true of the more general requirement that if it proceeded, the claimant should have a reasonable prospect of success (see [4] of the judgment).

A claimant had to supply a plausible evidential basis for the application of a relevant jurisdictional gateway. The court had to take a view on the material available if it could reliably do so. However, the nature of the issue and the limitations of the material available at the interlocutory stage might be such that no reliable assessment could be made, in which case there was a good arguable case for the application of the gateway if there was a plausible (albeit contested) evidential basis for it (see [7] of the judgment).

In any event, when it came to establishing the correct defendant,  on the information available, there was no realistic prospect that the claimant would be able to establish that she had contracted with the defendant or that the defendant would be would be held vicariously liable for the negligence of the driver of the excursion vehicle. The claimant’s claim in contract had not satisfied the specific factual requirements of the gateways. A fortiori, it had not satisfied the general requirement that there should be a reasonable prospect of success (see [15] of the judgment).

In those circumstances, the correct interpretation of the tort gateway in CPR PD6B, para 3.1(9)(a) did not arise and anything to be said on the subject was obiter (see [17] of the judgment).

Malik v Narodni Banka, Ceskoslovenska (or National Bank of Czechoslovakia) [1946] 2 All ER 663 considered; Vitkovice Horni a Hutni Tezirstvo v Korner [1951] 2 All ER 334 considered; Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438 considered; Canada Trust v Stolzenberg and others [1998] All ER (D) 449 considered; Telenor East Holding II AS v Altimo Holdings & Investments Ltd [2011] All ER (D) 230 (Mar) considered.

(2) (Obiter) Whether the English court had jurisdiction in respect of the claims for damages for personal injury caused by negligence. That depended on whether the claim fell within PD6B, para 3.1(9) which currently permitted the English court to assume jurisdiction if a claim was made in tort where damage was sustained within the jurisdiction; or damage sustained resulting from an act committed within the jurisdiction.

Lord Sumption and Lord Hughes - Leaving aside the statutory causes of action under the FAA 1976, the losses claimed were the after-effects of the accident. It might be assumed that they were experienced, at least in part, in England. Accordingly, the question was whether, when a tortious act resulted in personal injury or death, ‘damage’ was limited to the direct damage, namely, the physical injury or death, or extended to the indirect damage, namely, the pecuniary expenditure or loss resulting (see [17], [18], [20] of the judgment).

Following European Court of Justice authority ‘damage’ was not to be construed so extensively as to encompass any place where the adverse consequence of the event that had already caused actual damage elsewhere could be felt. Consequenty, that term could not be construed as including the place where the victim claimed to have suffered financial damage consequential on the initial damage arising and suffered by him in another contracting state. Nor could it be said that art 4 of Parliament and Council Regulation (EC) 864/2007 (Rome II) had any bearing on the construction of the jurisdictional gateways in the Practice Direction (see [22], [29] of the judgment).

Lady Hale, Lord Wilson and Lord Clarke - Although not part of the actual decision of the court  a majority considered that the claimant’s claims for personal injury both to herself and, as his executrix, to her late husband fall within PD6B, para 3.1(9) (see [56], [57] of the judgment).

As the defendant was not the owner or operator of the hotel or vicariously liable for the driver of the car, the court had no jurisdiction to try any of the claims made in this action. In those circumstances it was unnecessary to make any order on the cross-appeal which the claimant had brought against the Court of Appeal’s order that there was no jurisdiction to entertain her claims in tort for personal injury to herself and on behalf of her husband’s estate (see [32] of the judgment).

Decision of Court of Appeal, Civil Division  [2015] All ER (D) 77 (Jul) Reversed.

John Ross QC, Matthew Chapman QC (Instructed by Kingsley Napley LLP) for the claimant.

Howard Palmer QC, Marie Louise Kinsler QC, Alistair Mackenzie (Instructed by Kennedys Law LLP) for the defendant.

Tara Psaila, Barrister.

As the defendant was not the owner or operator of the hotel or vicariously liable for the driver of the car, the court had no jurisdiction to try any of the claims made in the action by the claimant. In so deciding, the  Supreme Court considered, obiter, how ‘damage’ in PD6B, para 3.1(9) was to be construed and whether it could encompass any place where the adverse consequence of the event could be felt.