Brownlie v Four Seasons Holdings Incorporated [2014] EWHC 273 (QB)

[2014] EWHC 273 (QB)Case No HQ12X05479
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 February 2014
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
Lady Christine Brownlie (Widow and Executrix of the Estate of Professor Sir Ian Brownlie CBE QC)ClaimantFour Seasons Holdings IncorporatedDefendant
John Ross QC & Matthew Chapman (instructed by Kingsley Napley) for ClaimantMarie Louise Kinsler (instructed by Kennedys Law LLP) for DefendantHearing Hearing date: 29 January 2014
Judgment
[1]This is an appeal by the Claimant against the order of Master Cook dated 31 July 2013. On that date he declared that this court has no jurisdiction to try this claim. He set aside the order of Master Yoxall dated 15 April 2013 by which Master Yoxall had given permission to serve the proceedings on the defendant in Canada.[2]The claim is for damages for personal injuries. The Claimant claims both in her own right for injuries suffered by herself, and under the Fatal Accidents Act 1976. She also claims under the Law Reform (Miscellaneous Provisions) Act 1934 as the executrix of the estate of her late husband (“Sir Ian”).[3]The claim arises out of a road traffic accident in Egypt on 3 January 2010. The vehicle in which the Claimant and Sir Ian were travelling left the road, with the result that she was injured and Sir Ian was killed. Further details of the claim will be given below in the discussion on the merits of the claim. At the time the accident occurred there were other passengers of the vehicle, apart from the driver. Sir Ian’s daughter Rebecca was also killed. She was then living in Egypt with her husband and children. The two children were also in the vehicle and survived.[4]At the time of the accident the Claimant, Sir Ian and their family were on a Tour (“the Tour” or “the excursion” or “the safari”) to see some of the sights of Egypt. They had departed on the Tour that morning from the hotel at which they were staying. The hotel refers to itself in its publicity material as “The Four Seasons Hotel Cairo at Nile Plaza” (“the Hotel”). The Claimant and Sir Ian had booked their accommodation at the Hotel through Cox & Kings Ltd in London, but that booking did not include the Tour. The Claimant booked the Tour by telephoning the Concierge at the Hotel shortly before she and Sir Ian left England, on 21 December 2009. She was able to do that because they had stayed at the Hotel in the previous year, and on that occasion the Claimant had picked up a booklet from the Hotel which advertised the tours that the Hotel provided. The brochure is a twelve page document containing details of twenty different tours.[5]The first page of the brochure is in the form of a letter addressed to “Dear Guest” and signed by the “Chief Concierge”. The letter invites guests to make a reservation by contacting the Chief Concierge or his team. The tours advertised required the provision of services, including transport, guides and refreshment. The only indication in the Concierge’s letter as to who was to provide those services is contained on the last page, under the tree Logo which is used on all documents relating to Four Seasons Hotels. The text reads:
“FOUR SEASONS HOTEL Cairo at Nile Plaza 1089 Corniche El Nil Garden City, 11619, Cairo – Egypt Tel: … For reservations please call the concierge Ext 2200”
. Cairo at Nile Plaza Garden City, 11619, Cairo – Egypt

Tel: …

[6]The Claimant made the booking in a telephone call to a female member of the concierge team (“the Concierge”). It is of course common ground between the parties that the Concierge was not acting as principal in that arrangement. Nor is it now suggested that she was acting as agent for the local Egyptian car hire business, which it is said, supplied the vehicle and driver (in any event, the car hire company would be likely to provide only two elements of the package, the vehicle and the driver, but not other elements such as meals, a guide, and, in the present case, a police escort). It is now common ground that the Concierge was a representative of a corporate entity which was itself engaged in the management of the hotel. The most important issue that arises on this application is whether the Master was entitled to find that that corporation, the Concierge’s principal, was not this Defendant.[7]This issue arises in circumstances where the Defendant is not named in the brochure used by the Claimant to book the Tour. The only other document available to the Claimant before she made the booking for the Tour was the itinerary issued to her by Cox & Kings Ltd in London. In the pages of that long document headed “Hotel Contact Details”, there are listed the hotels where the Claimant and Sir Ian were going to stay in India (where their itinerary first took them) and Egypt. The address and telephone numbers for their accommodation in Egypt was that of the Hotel, as given above. The only information given in the itinerary in addition to that at the end of the brochure is the website URL, namely www.fourseasons.com. However that takes the matter no further. The Claimant does not say she accessed the website. Even if she had accessed it, it would have made little difference to what I have to decide. That is because that website does not identify the corporate entity which operates or manages the Hotel, nor any other individual or corporate entity who, or which, according to the Defendant, might be the right defendant if the Defendant is not the right defendant.[8]Solicitors for the Claimant conducted enquiries. On 7 June 2010 they wrote a letter before action. They addressed the letter to:
“Four Seasons Hotels and Resorts Legal Department 1165 Leslie Street Toronto, Ontario, Canada”
.

Legal Department

[9]After setting out the nature of the claim, they asked the addressee to confirm that they accepted primary liability for the claim and were content for it to be brought in the English court. The letter went on to ask that, if liability were not accepted, the addressee should give reasons and identify any other parties believed to be responsible. The solicitors also asked for pre-action disclosure of documents relating to the booking for the Tour in particular: “Documentation between the Hotel, the driver and the tour guides. For example, contracts of employment, booking forms and payment schedules”.[10]On 27 July 2010 the solicitors received a substantive reply. It was on letter headed with the tree logo and the words, “Four Seasons Hotels and Resorts”. The writer of the letter identified herself as “Marilyn Waugh LLB, Corporate Legal Advisor”. The address from which the letter was sent was the address in Toronto to which the solicitors’ letter had been sent. In addition to the address and telephone number there appears the website address www.fourseasons.com. A copy of the letter is said to have been sent to: “Olivier Masson, General Manager Four Seasons Hotel at Nile Plaza”.[11]The substantive part of the letter reads as follows: “Please be advised that we have provided your earlier correspondence to AAHB Limousine and to Four Seasons Hotel at Nile Plaza for handling as the accident took place in the vicinity of Cairo. We requested that your correspondence be provided to their respective insurance carriers for direct response. We will follow up and request a timely response”.[12]On 22 August 2010 the Claimant’s solicitors received a fax from lawyers in Cairo. The substantive part of the fax read as follows: “1. The unfortunate accident that caused the death of the late Sir Ian Brownlie was not caused by Four Seasons Hotels and Resorts, nor by Four Seasons Hotel, Cairo at Nile Plaza, but was caused by Mr Hassan Mohammed Abdullah Salima who was employed as a driver at the time of the accident by AAHD Limousine Company … [the address in Egypt is given] 2. Mr Salima never worked for Four Seasons Hotels and Resorts nor for the Four Seasons Hotel, Cairo at Nile Plaza… 5. The role of Four Seasons Hotel, Cairo at Nile Plaza in this case was merely to relay this request to AAHD which executed it by one of its cars driven by one of its own employees without any involvement of Four Seasons Hotels and Resorts or of the Four Seasons Hotel Cairo at Nile Plaza…”.[13]The letter concluded saying the only responsible person was the driver and his employer, AAHD Company, and there was given the address of their insurers in Egypt. The letter is signed by Dr Tarek F Riad “Legal Advisor for Four Seasons Hotel Cairo at Nile Plaza”.[14]On 9 May the Claimant’s solicitors replied to Dr Riad. They made the point that the Hotel staff gave every indication that the contract for the Tour was with the Hotel, and at no time had it been suggested that the Hotel was simply acting as an agent for the car hire company. The suggestion that the Concierge was acting as agent for the Egyptian car hire company has not been pursued in these proceedings. The Claimant’s solicitors then went on to write as follows:
“Your letter refers to both the “Four Seasons Hotels and Resorts” and the “Four Seasons Hotel Cairo at Nile Plaza”
. We are unclear as to whether these are separate corporate entities. If they are, would you confirm which corporation was responsible for the contract whereby our client booked accommodation at the hotel. Please would [you] also explain the status of these two corporate entities under Egyptian law, and their relationship with the parent company in Canada”.[15]There was no reply to that letter. On 9 May 2011 solicitors wrote again to Ms Waugh in Toronto. They attached a copy of the letter they had sent to Dr Riad. On 16 May Ms Waugh replied on letter paper similar to that which she had used before. Again she sent a copy of her letter both to Dr Riad and to Mr Olivier Masson. The substantive part of the letter read:
“Please be advised that any claim relating to the unfortunate accident resulting in the death of Sir Ian Brownlie should be brought against AAHD Limousine Company located at [the address given] and their insurer…”
[16]Thus the Claimant’s solicitors were left with no answer to their question, namely what corporate entity or entities were referred to by the words “Four Seasons Hotels and Resorts” and “Four Seasons Hotel Cairo at Nile Plaza”.[17]On 19 December 2012 the Claimant issued a Claim Form. She named the Defendant as First Defendant, giving the address in Toronto. As Second Defendant she named an Egyptian company Nova Park Cairo SAE (“the Egyptian company”). In the details of the claim the solicitors wrote:
“[The Claimant and Sir Ian] stayed at the Four Seasons Hotel Cairo at Nile Plaza in Cairo, which they believed to be owned and managed by the First Defendant… Subsequent enquiries showed that the Four Seasons Hotel Cairo at Nile Plaza was in fact owned by the Second Defendant which is an Egyptian company…”
[18]The only other reference to the Egyptian Company in the witness statements or exhibits is in the witness statement of Mr Newman, set out below. The claim form was not served on the Egyptian company and the claim against it has not been pursued. The Particulars of Claim are dated 15 April 2013, immediately after the grant of permission to serve out of the jurisdiction. The Particulars of Claim do not name the Egyptian company as a Defendant.[19]Documents were also delivered to the Four Seasons Hotel in London (“the London Hotel”), but it has not been argued that that was good service on the Defendant. However there are references in the evidence to the London Hotel. This evidence for the Defendant appears to be addressed to a submission, that the Claimant has not in fact advanced, that service had been effected at the London Hotel, and thus within the jurisdiction.[20]The First (and now the only) Defendant is described in the Particulars of Claim as follows: “5. The Defendant is, and was at all material times, a corporate entity engaged, among other things, in the ownership and/or operation and/or organisation of a chain of international hotels which included the Four Seasons Cairo at Nile Plaza Hotel, Cairo, Egypt. The Defendant is also engaged in the sale and supply of excursions and other leisure services to guests staying at the Hotels. The Defendant is a corporate entity registered in British Colombia, Canada. 6. For the avoidance of doubt, the Claimant states that a contract was entered into with the Defendant for the provision of the excursion described below. Further or alternatively and in any event, the Claimant and the deceased were owed a duty of care at common law by the Defendant. The said duty of care required the exercise of reasonable care and skill so as to ensure the deceased’s reasonable safety whilst travelling on and making use of the excursion service which is the subject of these proceedings”.[21]There is a similar statement in the witness statement of Mr Donovan, her solicitor, made on 4 April 2013 on behalf of the Claimant in support of the application for permission to serve out of the jurisdiction.

REQUIREMENTS FOR PERMISSION TO SERVE OUT OF THE JURISDICTION

[22]There is little dispute about the general principles which the court must apply on an application for permission to serve proceedings out of the jurisdiction. In order to obtain permission to serve out a claimant must state which ground in paragraph 3.1 of Practice Direction 6B is relied on (CPR r6.37(1)(a)).[23]The Claimant stated that she relied on two grounds (which are now pursued as against the Defendant): paras 3.1(6)(a) and/or (c) and 3.1(9)(a). These permit service out in cases where:
"(6) A claim is made in respect of a contract where the contract (a) was made within the jurisdiction … (c) is governed by English law; … (9) A claim is made in tort where (a) damage was sustained within the jurisdiction; ..."
[24]Applicants for permission to serve a claim form out of the jurisdiction are in general required to show, in relation to each claim, first, that they have a good arguable case that it falls within the ground relied on. That is sometimes expressed as a requirement that they should show that they have much the better of the argument: in Canada Trust v Stolzenberg (No.2) [1998] 1 WLR 547 (“the Canada Trust gloss”). There is a second requirement: a claimant must satisfy the court that there is a serious issue to be tried on the merits of the claim, i.e. a substantial question of fact or law or both. In other words, there has to be a real, as opposed to a fanciful, prospect of success on the claim.[25]As to the standard of proof, Mr Ross refers to Antonio Gramsci Shipping Corporation v. Recoletos Limited [2012] EWHC 1887 [Comm]. In that case the issue before the court was whether or not a Mr Lembergs personally had control of two corporate defendants. That issue is analogous to the issue before me in the present case. As Teare J explained in para 34:
“That issue is relevant both to the jurisdictional gateway (did Mr. Lembergs agree to the English jurisdiction in the charterparties?) and to an issue in the trial (was he party to the charterparties such that he is liable in restitution in respect of them jointly and severally with the Corporate Defendants ?).”
[26]Teare J made the following observations at paragraph 29-30 and 39, which I respectfully adopt: “29. The test of what constitutes a good arguable case when jurisdiction is in issue was considered by Waller LJ in Canada Trust v Stolzenberg (No.2) [1998] 1 WLR 547 at p.555. He pointed out that where the point at issue was one which would be the subject of argument at trial the court "must be concerned not even to appear to express some concluded view as to the merits". He also observed that: "the "good arguable case" test, although obviously applicable to the ex parte stage, becomes of most significance at the inter partes stage where two arguments are being weighed in the interlocutory context which, as I have stressed, must not become a "trial". "Good arguable case" reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate i.e. of the court being satisfied or as satisfied as it can having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction." 30. This approach was approved by Lord Steyn in the House of Lords in that case (see [2002] 1 AC 1 at p.13) and by Lord Rodger in the Privy Council in Bols Distilleries v Superior Yacht Services[2007] 1 WLR 12 at para.28.”…. 39. … I am bound to apply the "Canada Trust gloss" whilst being careful not to prejudice the determination of the factual issue at trial. The "Canada Trust gloss" does however advise the court to concentrate on whether the court is "satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction." It seems to me that in a case where there is, in the main, a conflict of evidence which cannot be resolved without appearing to conduct a pre-trial it is particularly important that the court asks itself whether factors exist which allow the court to take jurisdiction”. "the "good arguable case" test, although obviously applicable to the ex parte stage, becomes of most significance at the inter partes stage where two arguments are being weighed in the interlocutory context which, as I have stressed, must not become a "trial". "Good arguable case" reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate i.e. of the court being satisfied or as satisfied as it can having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction."[27]There is also a third requirement: the court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim (CPR r6.37(3)). THE APPLICATION TO SET ASIDE The Defendant’s evidence

THE APPLICATION TO SET ASIDE

[28]On 14 May 2013 the defendant issued its Application Notice asking for an order that the English court has no jurisdiction to try the claim and alternatively that it should not do so. The Application Notice was supported by two witness statements, one dated 15 May 2013 by Mr Newman, a solicitor for the defendant, and the other witness statement dated 1 July 2013 by Mr McManus.[29]As Mr Ross submitted, neither witness statement is in accordance with the requirements of Practice Direction 32, (made to give effect to CPR rr.32.2, 32.6 and 32.8). CPR r.32.8 provides that:
“A witness statement must comply with the requirements set out in Practice Direction 32”
[30]The relevant parts of Practice Direction 32 read as follows: “18.2 A witness statement must indicate:(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and(2) the source for any matters for information or belief….20.1 A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence; it must include a statement by the intended witness that he believes the facts in it are true.20.2 To verify a witness statement the statement of truth is as follows: ‘I believe that the facts stated in this witness statement are true’.20.3 Attention is drawn to rule 32.14 which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth. [By CPR r.32.14 proceedings for contempt may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth]….25.1 Where: … (2) a witness statement, … does not comply with Part 32 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.25.2 Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge in the court where the case is proceeding.[31]In his statement dated 15 May 2013 Mr Newman identifies himself as the solicitor acting for the Defendant. The substantive part of his statement reads as follows: “7. The first defendant will contend as follows:(a) That they are a British Colombia registered company based in Canada.(b) They are a management company and do not own either the Park Lane [London] or Cairo Hotels.(c) Both the Cairo Hotel and Park Lane Hotel are owned by different owners and in the case of the Cairo Hotel, this a company referred to on the claim form, Nova Cairo Park SAE.(d) The owners of the Hotel enter into various agreements with a number of Four Seasons entities depending on the jurisdiction. These agreements will cover licensing, management and advisory issues.(e) Four Seasons Holdings Inc is not a party to any agreement in place with the Cairo Hotel”. (a) That they are a British Colombia registered company based in Canada. (b) They are a management company and do not own either the Park Lane [London] or Cairo Hotels. (c) Both the Cairo Hotel and Park Lane Hotel are owned by different owners and in the case of the Cairo Hotel, this a company referred to on the claim form, Nova Cairo Park SAE. (d) The owners of the Hotel enter into various agreements with a number of Four Seasons entities depending on the jurisdiction. These agreements will cover licensing, management and advisory issues. (e) Four Seasons Holdings Inc is not a party to any agreement in place with the Cairo Hotel”.[32]This statement plainly does not comply with the Practice Direction. He does not state that he is speaking from his own knowledge (I assume he was not), nor does he state the source of his information or belief. Although the witness statement contains a statement of truth, the drafting of paragraph 7 is designed not to be a statement of fact at all, but a submission (“the first defendant will contend…”). Mr Newman does not state that the contentions to be put forward are themselves true, nor that he believes them to be true. As a statement of what the First Defendant intends to submit to the court on some future unspecified occasion, it could in principle be true. But if the First Defendant were to contend that it was true, it would have also to put before the court the facts relied on in support of these contentions. There are no facts put in evidence.[33]The witness statement of Mr McManus dated 1 July 2013 is also defective. It is less defective than that of Mr Newman. However, that is not to the credit of Mr McManus. He referred to Mr Newman’s statement, and identified Mr Newman as his assistant, but did not nothing to correct or explain the obvious defects of Mr Newman’s statement. He stated: “2. … In so far as the matters contend [sic] within this statement are within my own knowledge I believe them to be true and insofar as these matters are not within my own knowledge I believe them to be time [sic] based on my investigations and instructions from the First Defendant”.[34]Mr McManus does not give any specific source for the information, and in particular does not identify any individual from whom he has received instructions. Nor does he state what investigations he made, on the basis of which he formed his belief.[35]Mr McManus does go on to give some evidence of fact, but it is irrelevant because he expressed himself in the present tense (referring to July 2013): “5. I can confirm the First Defendants do not own either the Four Seasons Hotel at Nil Plaza, Cairo (“the Cairo Hotel”) or the Four Seasons Hotel at Park Lane (“the London Hotel”). “6. The First Defendants do not operate either the Cairo or London Hotels, nor do they employ any of the staff working at these hotels, or have any representatives there”.[36]Neither party made an application to the court, under the Practice Direction para 25 (ie that the court should refuse to admit the Defendants’ witness statements as evidence, or for permission to file defective witness statements).[37]For the Claimant the defective witness statements contain something of benefit. Thus it is accepted that the Defendant is “a management company”. And it is accepted that the owner of the Cairo Hotel, Nova Park Cairo SAE entered “into various agreements with a number of Four Seasons entities” or (at least with one such entity) for the licensing management and advisory services to be provided to it. And what is said in the present tense does little to harm the Claimant’s case. It is said that, as at the time of the witness statement, the Defendant “is not a party to any agreement in place with the ‘Cairo Hotel’”. Thus nothing is said as to what the position was at the time in December 2009 and January 2010 when the Claimant booked the Tour and she and her family went on it.[38]However, no indication is given by the Defendant as to whether the “Four Seasons entities” are corporations, nor as to what agreements Nova Park Cairo SAE had entered into by which it may have been licensed to use intellectual property (such as the logo and the name “Four Seasons” owned or controlled by the Defendant), nor what provision is made for management or advisory services. Nothing is said about the General Manager, Mr Olivier Masson, to whom Ms Waugh had copied her letters, or what his relationship (if any) might have been, or is now, to the Defendant.[39]The use of the present tense is all the more remarkable in that Mr McManus chose to give some information as to the position in December 2009. He said that: “7. The material Tour was indeed booked by telephone and added to the claimant’s bill. The Tour was booked by the concierge at the Cairo Hotel and the payment for this would have accounted for in the Cairo Hotel’s accounts”.[40]As a matter of fact no payment was requested by anyone for the Tour which ended so tragically. No documents are produced or referred to in either witness statement.[41]What the Defendant’s witness statements say about the Hotel is confusing. For the purpose of validity of service in London (if that had been an issue) the time which would be relevant would be the time of service of documents at the London Hotel. So the use of the present tense would have been relevant.[42]But for the purposes of service out of the jurisdiction, and for merits of the claim, the time which is relevant is the time when the contract was made and when the accident occurred. The situation as it is at present is irrelevant.[43]But when Mr Newman said that the Cairo Hotel “is” owned by the company referred to on the claim form, Nova Cairo Park SAE, he did not say that it is managed by that company, and he does not say by whom it was owned or managed in December 2009 and January 2010.

The Claimant’s evidence

[44]Before Mr McManus had made his witness statement, there had been served three witness statements on behalf of the Claimant. One is by herself dated 27 June 2013, a second by a paralegal at her solicitors, Ms Kennedy, and a third dated 26 June 2013 by an investigator, Mr Labbett.[45]The Claimant described her previous visit to the Hotel in which she picked up the brochure advertising tours. She described the telephone conversation in which she made the booking (I refer to this in more detail later in this judgment). She described events subsequent to the booking. She concluded her witness statement by making observations relevant to the point made in para 5 of his letter by the Egyptian lawyer (but not now pursued) that the Concierge had been acting as agent for the Egyptian car hire company. She wrote:
“But for us it was all consistent with the tour being part of the five star service that was being provided by the hotel. This is exactly what we wanted. When we travelled we did not leave our legal brains behind us, and we booked through the hotel because we wanted to deal with an international company with a very good reputation, rather than contracting with an unknown Egyptian limousine company…”
[46]It is not disputed by the Defendant that that is what the Claimant understood she was doing.[47]The evidence of Ms Kennedy recounts how she made a test booking over the internet with the Four Seasons Hotel Cairo through the website www.fourseasons.com. However, as already noted, this is of very limited, if any, assistance to the court. The Claimant had not herself accessed the website at any time.[48]Mr Labbett in his witness statement recounted a visit that he made on the instructions of the Claimant to the Cairo Hotel in January 2012. Nothing he stated can therefore have any direct relevance to anything which I have to decide. However, he described what he saw and he collected images of various announcements and documents he found. Nothing he found in 2012 indicated to a guest of the Hotel the identity of the company operating or managing the Hotel.

THE JUDGMENT

[49]In paragraphs 1 to 6 of his judgment the Master set out the nature of the application before him and the brief details of the events giving rise to the claim. He also included the following: “4. The Defendant is a Canadian registered company. It is the parent company of a group of companies involved in managing hotels which trade around the world under the “Four Seasons” name”.[50]Parent companies do commonly have in their name the word “Holdings”, as the Defendant does. But this description of the Defendant is unsupported by the evidence. There is no evidence before the court that the Defendant is the parent company of any other companies.[51]In his second witness statement Mr Donovan referred to the witness statement of Mr Newman dated 14 May 2013. He stated at paragraph 10: “It is my understanding that the defendant is the parent company of the “Four Seasons chain” [referred to in paragraph 9 of the witness statement of Mr Newman] and that the Cairo Hotel was part of the chain”.[52]His use of the words “the parent company” could (if taken by itself) have caused confusion, because those words suggest the existence of one or more subsidiary companies. However, there is no evidence about the legal structure of what Mr Newman refers to as the “Four Seasons chain”. And Mr Donovan made clear what he meant in the following paragraph by saying that: “There was no disclosure of the existence or identity of any other contracting party (whether Egyptian or otherwise) at the time of contracting”.[53]In paragraph 7 to 9 of his judgment the Master sets out the requirements for permission to serve a claim form out of the jurisdiction. He did so briefly and in terms which are not substantially in issue. He then recited the procedural history.[54]At para 10 of his judgment the Master wrote: “… the second defendant owned and ran the Hotel”.[55]The Claimant does not dispute that Nova Park Cairo SAE is now the owner the Hotel. But, as Mr Ross submits, there is no evidence before the court relating to the relevant time, and even as to the present time there is no evidence that the Egyptian company ran or operated the Hotel, or that it owned the hotel business conducted on its land. The proprietor of land and buildings may carry on business there itself, or it may let them on a lease to a tenant who carries on the business there, or there may be some other arrangement. Absent any evidence, there is no presumption as to who may be running the business being carried on there.[56]At paragraph 18 of his second witness statement Mr Donovan produced a translation of documents used in Egypt in the criminal prosecution of the driver of the vehicle. These record that, in answer to the question “How did the accident happen?”, the driver replied to the police as follows: “During I was working at Four Seasons Hotel, they informed me to take the car … to get the tourist group and transfer them from Cairo to… and spent about 1 hour there…”.[57]The documents the Claimant’s solicitors obtained from lawyers in Cairo show that the driver was convicted of a road traffic offence and that an appeal by him was dismissed.[58]The reasoning of the Master is set out in the following paragraphs of his judgment:
“28. Lady Brownlie’s evidence repeatedly refers to her understanding that the arrangement she made for the safari tour were made with the hotel and the service was provided by the hotel. It is equally clear that she was aware that the hotel was part of an international group with an established reputation for excellence. Importantly Lady Brownlie does not say that any representation was made to her to the effect that she was contracting with a Canadian company. There is no suggestion that any part of the booking was made over the internet. Unfortunately, although it was agreed that the safari trip would form part of the hotel bill and be paid for by credit card no charge was in fact raised and no payment was made in respect of it. 29. Lady Brownlie’s evidence is consistent with the facts pleaded at paragraphs 18 to 30 of the Particulars of Claim. It is common ground that the Hotel was in fact owned by Nova Park Cairo SAE. It is equally clear that the Defendant is a separate legal entity which does not own or operate hotels. In particular it does not own or operate either of the Park Lane or Cairo hotels. Mr Newman’s evidence also satisfies me that the London and Cairo hotels are in separate ownership… 32. … She had chosen the hotel because she had stayed there before and had experience of it and wished to return. She had picked up a brochure for the safari tour from the hotel on her previous visit. I accept the fact that the Hotel was part of the Four Seasons Group may have played a part in her decision but it is not said by her to be the dominant factor. It is not novel or unusual for a hotel even one that is part of a group or chain to be owned and managed by a company established for that purpose in the country where the hotel is located… 34. In paragraph 31 of the Particulars of Claim it is asserted that a contract was entered into with the Defendant. I accept Ms Kinsler’s submission that the evidence does not support the existence of any such contract. In my judgment the other contractual party was clearly the Hotel”
.

CRITICISMS OF THE JUDGMENT

[59]Mr Ross submits that there are a number of difficulties with these passages, in addition to the ones already adverted to. I accept that submission.[60]It is not appropriate for the court, on an application for permission to serve out of the jurisdiction, or to set aside permission when given, to try the merits of the claim: see Gramsci. Here it does appear from the judgment that the Master has conducted a trial before a trial, and that he has made findings of fact on issues that (if they remain issues) will have to be determined by the court at any trial.[61]As to paragraph 29 of the judgment, I cannot accept that it is clear from the evidence in this case that the Defendant does not operate hotels, or, in particular that it did not operate the Cairo Hotel in December 2009 and January 2010. For the reasons given above, Mr Newman’s statement is seriously defective, and the Master could not properly be satisfied that the Defendant did not in 2013 operate the Hotel in Cairo (even if that had been the relevant date). The fact Mr Newman did not give any information relating to the relevant date, namely the date on which the Tour was booked or on which the accident happened, confused the Master into making in para 29, the incorrect statement that “It is common ground that the Hotel was in fact owned by Nova Park Cairo SAE” and the correct, but irrelevant, statement:
“In particular it [the Defendant] does not own or operate either of the Park Lane or Cairo hotels. Mr Newman’s evidence also satisfies me that the London and Cairo hotels are in separate ownership”
[62]As to paragraph 32 of the judgment, there is no evidence before the court that it is not novel or unusual for a hotel that is part of a group or chain to be owned and managed by a company established for that purpose in the country where the hotel is located. That may indeed be the case. The Master may well have been able to state that as a matter of common knowledge. But even if it is the case as a general statement, there is no evidence in this case that any company was established in Egypt for the purpose of managing the Cairo Hotel (and the Master did not find that there was such a company).[63]Mr Newman does not explain whether, by paragraph 7(d) of his witness statement, he was referring to the owners of the land and buildings of the Hotel, or the business of the Hotel conducted on those premises. In the absence of any reference to what the Egyptian company did, I am not prepared to read that statement as meaning anything more than that it is the proprietor of the land and building. What he appears to have been implying is that the proprietors of the land and building, Nova Park Cairo SAE, entered into one or more agreements with an unspecified entity associated with the Defendant for the management of the Hotel. He did not suggest that the management was to be carried out by anyone other than the entity with whom that contract was made. In particular, he made no suggestion that Nova Park Cairo SAE were managing or operating the Hotel.[64]It follows that paragraph 34 of the judgment is particularly difficult to understand. There is no evidence that the other party to the contract for the Tour made over the telephone between the Claimant and the Concierge was the proprietor of the land and buildings. On the contrary, as it seems to me the Claimant has a strongly arguable case that the other party to the contract for the Tour was most probably an entity with whom the proprietor (at the relevant time) of the land and buildings, had entered into agreements. The agreements in question were likely to have provided for a license to use intellectual property including the tree logo and the words “Four Seasons”, and for management and advisory services. It may well be that these services were delivered by or through the good offices of the General Manager, Mr Olivier Masson or some predecessor of his in that position.[65]If the Claimant’s solicitors had received the disclosure which they requested at the beginning of the correspondence, it may well be that they would have received documentation showing the legal basis on which the services of Mr Olivier Masson (or whoever was General Manager in December 2009 and January 2010) were provided, and to and by whom they were provided. And if the matter proceeds to trial, and if the identity of the Defendant as the other contracting party remains in issue, that may well be investigated. There may also be investigation of the role of Mr Masson, and other members of the hotel management team. The investigation is likely to be as to who was responsible for putting in place the package of services referred to as Tours, which the Concierge was authorised to offer to guests, and what measures they took to ensure the safety of their guests whom they sent on these Tours.[66]It follows in my judgment that the Master has fallen into error in concluding (in para 34 of his Judgment) that the Defendant was not the party to the contract made between the Concierge and the Claimant for the Tour.[67]Therefore I must consider the matter afresh, and substitute my own findings.

WAS A CONTRACT MADE BY THE CLAIMANT WITH THE DEFENDANT?

[68]In the context of the present case the question whether the claim is made in respect of a contract made within the jurisdiction embraces three separate questions. The first is whether there is a sufficiently arguable case that the Defendant made a contract with the Claimant at all. The second and third are whether, if there is such a case, there is also a sufficiently strong case that the contract was made in England and Wales, or governed by English law.[69]It is to be noted that the first and third questions may remain live issues for any trial, if this case is to be tried in England. But the second question (whether the contract was made in England and Wales) can arise only at the stage of the application to serve the claim form out of the jurisdiction. It cannot be a relevant independent issue at any trial. At most it might be a sub-issue relevant to whether the contract is governed by English law.[70]Mr Ross submits that the proper approach to the question Who was the Concierge’s principal? is for the court to look first at the facts as they were made to appear to the Claimant and the Concierge (and her principal) at the time the contract was made. The issue should not be determined solely on the evidence in the parties’ witness statements, even if the Defendant’s witness statements were not defective. I accept that submission.[71]The evidence from which to start is not in dispute, although the interpretation of it may be. There is the brochure which the Claimant had picked up on her previous visit. And it is common ground that the Concierge had a principal, and that that principal was not the Egyptian car hire company. The brochure is the most important evidence, since it alone purports to identify the Concierge’s principal. It does that by the words quoted in para 5 above. Although those words do not name the Defendant, absent any other evidence they would lead the reasonable person to understand (as the Claimant herself did understand) that she was contracting with an international company known to trade under the name and logo of “Four Seasons”. No specific company fitting that description was, or could have been, known to the Claimant at the time, because those responsible for the Four Seasons Hotel chain choose not to tell their guests who, or which company it is, which is responsible for the management of the hotels, including, in particular, the safety of the guests. But the Defendant fits that description.[72]I turn then to consider the witness statements. No individual or company (other than the Defendant) has been referred to or identified in the evidence as carrying out the management of the Hotel under any arrangement with the proprietors of the land and building. Nor is there any evidence that the proprietors of the land and buildings managed the Hotel business themselves. But it is common ground, as Mr Newman stated, that the Defendant is indeed “a management company”. On the other hand, I cannot accept Mr Newman’s statement that “Four Seasons Holding Inc is not a party to any agreement in place with the Cairo Hotel” as evidence that it was not a party to such an agreement in December 2009 and January 2010. If that is what he meant he should have said that.[73]Even if Mr Newman’s statement could be read as referring to the relevant time in the past, I would place little weight upon Mr Newman’s evidence, because he does not identify any source of his information.[74]The main reason why a person making a witness statement is required by the CPR to give his source of information is so that the court can assess the weight to attach to the hearsay statement. Since the witness statements of Mr Newman and Mr McManus do not identify the individual who had instructed them, the weight I attach to their evidence is negligible. This is because their evidence is given against a background of an exchange of correspondence in which the Defendant and the Egyptian lawyer have each refused to answer the straightforward questions of the Claimant’s solicitors. From this I infer that the Defendant is determined that the court should not know the answers to those questions, unless it is compelled to give them. The evidence for the Defendant is evasive. If the information given by each solicitor were to turn out to be untrue, the effect of the breach could well be that there is no individual against whom proceedings for contempt of court could be brought.[75]My own finding is that the Claimant has a strongly arguable case that the Defendant was the other contracting party to the contract that the Claimant made with the Concierge. There is no other company identified as a possible defendant. Four Seasons Hotels and Resorts can have no complaint if the court does not take into account what points the Defendant may make, or evidence it may call, at any trial, but which it chooses not to mention at this stage: see VTB Capital Plc v Nutritek International Corp [2013] UKSC 5; [2013] 2 AC 337 at para 91 below.

WAS THE CONTRACT MADE WITHIN THE JURISDICTION?

[76]The next question is therefore whether the Claimant has a sufficiently strong case that the contract was made within the jurisdiction.[77]This question arises only on the footing that, as I already held, the Claimant has got an arguable case that there was a contract between herself and the Defendant for the Tour, that is to say for the provision of a vehicle, a guide, an escort and meals during the day.[78]It is common ground that where a contract is made by telephone the contract is made at the place where the acceptance is received: Entores Limited v. Miles Far East Corporation [1955] 2QB 327, 334-5.[79]This rule is predicated on the law, recognised throughout common law countries, that the formation of a contract takes place where there is an offer made by one party which is accepted by the other. In the case of an oral, or other instantaneous, communication the rule is that the acceptance which concludes the contract must in general be received and understood by the party who had made the offer. This is explained by Denning LJ at pages 332-333. At page 334 he added: “In a matter of this kind however it is very important the countries of the world should have the same rule. I find that most of the European countries have substantially the same rules as that I have stated”.[80]There is no evidence from the Concierge with whom the claimant spoke. This is unsurprising after the passage of four years since the conversation in question. So there is no dispute of fact. But there is an issue as to the proper interpretation of the facts stated by the Claimant. The evidence before the Master was in the form of two witness statements, the first from Mr Donovan made on 4 April 2013 and the second from the Claimant herself made on 22 June 2013.[81]Mr Donovan stated as follows: “7… On 21 December 2009 (the day before the departure for India) the Claimant again called the Four Seasons Hotel from the UK in order to book the excursion. She informed the hotel personnel she would need a car for five people and that her preference was for the excursion to take place on a Sunday. She was informed that the excursion would last for 14-16 hours. It was arranged that the car would collect the family party from the Hotel at 7.30 am (local time) and would aim to return to Cairo before rush hour (the Claimant and her late husband would be travelling with Sir Ian’s daughter, Rebecca, and her two young sons). The cost of the excursion included a vehicle, a guide, a driver and police escort. 8. The claimant and Sir Ian Brownlie arrived at the Four Seasons Hotel as scheduled on 31 December 2009 while checking in it was confirmed that there was a handwritten booking for the excursion and the Claimant was provided with a two page leaflet with a description of the excursion that the Four Seasons Hotel had arranged for her. The leaflet was headed “The Untouched Beauty of Al- Fayoum Over Day & Safari in Fayoum”.[82]In her witness statement the Claimant described how she had picked up on a previous visit to the Four Seasons Hotel in Cairo the booklet which advertised the Safari Tours that the Hotel provided, and from which I have already quoted in this judgment. She described a conversation on 1 October 2009 when she sought to book a Tour, but was told by a person at the Hotel that she should ring back nearer the date at which she was due to arrive in Cairo. She then continued as follows:
“6. On 21 December 2009, the day before we left to start our holiday, I rang the hotel again, this time to make a firm booking for the safari. I said that we would want a car for five people and that we would want to make the trip on a Sunday. The person I spoke to said that the safari would take about 14-16 hours, and I felt that this would be a bit long, given that we would be in a mixed family group - Rebecca and her two young sons were to join us. Therefore we settled on a departure time of 7.30 am (from the hotel) returning to Cairo before rush hour. The safari would involve visits to local beauty spots, and a midday lunch break, in which we would dine in a Bedouin lodge near a lake. The cost of this was inclusive within the price, which was to be charged to our room as part of the overall bill for staying at the Four Seasons Hotel. I would have opted to pay in Sterling, rather than Egyptian currency. Following this conversation I was confident that the safari had been booked and that the hotel would be responsible for all the arrangements. 7. We landed in Cairo on 31 December, arriving at the Four Seasons Hotel at about 5.00pm. Whilst checking in we enquired about the Safari Tour with the concierge. He took out a big visitors’ book, opened it up, and said that there was a booking. I could see the details of our tour had been written in it in longhand. He also gave me a two page leaflet for the tour, which is exhibited... The concierge was a man, and there was also a woman present. I think that she might have checked the booking elsewhere, but my understanding was that the main record was written in the book. 8. The cost of the safari was to be US$ 1000 plus US$ 100 per person. This included the cost of the vehicle, the driver and a tour guide. We were also to be accompanied by a police escort – apparently this is a standard requirement for tourist safaris in Egypt following the Luxor terrorist attacks. I assumed there was a fee for the police escort which was part of the price…”
[83]The description of the Tour in the brochure that the Claimant had collected on her previous visit refers to the Tour in question as “Tour 16 full day tour/approximately 16 hours”. There are two photographs, including one of a vehicle which looks like a four wheel drive vehicle. The text reads as follows: “Al-Fayoum is a unique city. Explore the fossils in Wadi El Rayan and Wadi El Hitan from a desert prospective. Drive through Fayoum Oasis passing by a lake to Qaroon and journey through the desert to the Waterfalls of El Rayan Lakes. Dine in the Bedouin Lodge near a lake before heading back to Cairo”.[84]The document which the Claimant was given on arrival in Cairo is a two page document containing more detailed information on the places to be visited, the distances to be covered and the other details of the itinerary. It includes nothing relating to the date booked, the number of passengers or the cost. So it does not help me in resolving this issue and it need not be set out.[85]On the basis of this evidence it is not straightforward to analyse the conversation in terms of offer and acceptance. The brief details given in the brochure of “Tour 16” cannot be an offer: that document says nothing about the date, the number of passengers or the price. Further, whatever that document was, as a matter of law, Tour 16 is not the tour which the Claimant agreed with the Concierge. The Tour she agreed with the Concierge was shorter.[86]Ms Kinsler submits that this evidence is to be understood as meaning that the Concierge made an offer to provide a Tour on terms she had orally proposed and explained, and that the contract was made in Egypt when the Claimant accepted that offer. Mr Ross submits that the evidence is to be interpreted the other way round.[87]It seems to me that the most probable analysis of the evidence is the following. The brochure amounts to an advertisement, or at most an invitation to treat. The Claimant in the telephone conversation of 21 December started by informing the Concierge that she was interested in a shortened version of Tour 16, and stating the number and ages of the members of the family whom she wished to take on the Tour. Thus she invited the Concierge to put forward a proposal or proposals as to a revised itinerary, the timing and the price. I infer that the Concierge did put forward one or more suggestions for a tailor made itinerary which would enable the Claimant’s party to return to Cairo before rush hour and less than 16 hours after departure. I infer that the Concierge probably mentioned matters not mentioned in the brochure: that there was a requirement for a police escort, that the cost was to be US$1000 plus US $100, and that that was to include the cost of the vehicle, the driver, a tour guide together with the police escort and lunch. I infer that, having been told the options available to her (namely the standard 16 hour Tour and the tailor made Tour, together with other details) the Claimant then told the Concierge that she wished to make a firm booking for one of the options proposed by the Concierge. I take that to be the Claimant’s offer. I infer that the Concierge accepted by saying yes, or words to the effect that she accepted the booking. On that analysis the contract was made in England where the Claimant heard the acceptance of the booking.[88]In his judgment the Master deals with this briefly and gave no further analysis of the matter. He set out the law, which is not in dispute, and then added: “I accept Mr Kinsler’s submission that the contract between the Claimant and the Hotel was made in Egypt, when the clerk heard Lady Brownlie agree to the Tour on the terms that he had proposed and explained”.[89]I reach a different conclusion from his with some hesitation.This is an issue which will not arise at trial. I accept that a reasonable person could think it more likely that an offer was made by the Concierge after hearing the requirements of the Claimant, in which case the confirmation by the Claimant that she wished to make the booking could be interpreted as the acceptance. It is one or the other, and either party could be said to have a good arguable case. So this is another case (that is to say not a case where there is a dispute of fact) where it is difficult to apply the Canada Trust gloss. But I am satisfied that the factors exist which allow the court to take jurisdiction.

WAS THE CONTRACT GOVERNED BY ENGLISH LAW?

[90]If I am right up to this point in this judgment, then this question does not need to be answered. I shall deal with it briefly. It is common ground that the question is to be decided in the light of Regulation (EC) Number 593/208 of the European Parliament and of the Council of 17 June 2008 on the law applicable to the contractual obligations (Rome I). Article 28 provides that that regulation applies to contracts concluded after 17 December 2009.[91]So far as material the Regulation reads as follows:
“Article 3 Freedom of Choice 1. A contract shall be governed by the law chosen by the parties. The choice should be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case… Article 4 Applicable Law in the Absence of Choice 1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3… the law governing the contract shall be determined as follows… (b) A contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence; …”
Article 4 Applicable Law in the Absence of Choice (b) A contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence; …”

Article 4 Applicable Law in the Absence of Choice

[92]Guidance on the approach the court must adopt to the Regulation is to be found in Oldendorff v. Liberia Corp 2 [1996] 1 Lloyd’s Report 380 at 387 and Commercial Bank PLC v. Bank of Communications [2011] EWHC 281(Comm) at para 29. I shall cite from the words of Blair J in the latter case: “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 review of academic authority in [Oldendorff]…) It follows that both parties must be shown with reasonable certainty to have had a common intention, although I consider it is unnecessary to distinguish between subjective or objective intention in this regard. The fundamental question is whether in the absence of an express choice there was nevertheless a real choice. As the Giuliano-Lagarde put it: “this article does not permit the court to infer the choice of law that the parties might have made where they had no clear intention of making a choice. Such a situation is governed by Article 4”.[93]After reciting the law the Master said at para 37 of his judgment: “The matters referred to by Mr Ross QC … do not in my judgment amount to evidence of a real choice which the parties had an intention of making. It is more likely that neither party gave the matter any thought. 38. In the absence of any agreement as to the choice of law the general rule in Article 4 of Rome I applies. In the case of a contract for services Article 4(1)(b) provides for the law of the contract to be governed by the law of the country where the service provider had his habitual residence. In my judgment the service provider was the hotel. As the hotel was incorporated in Egypt I accept Ms Kinsler’s submission that Egyptian law governs the contract. I also accept her submission that the escape clause provided by Article 4(3) cannot apply for the reason that the contract was made in Egypt, to be performed in Egypt and to be paid for in Egypt. In the circumstances it could not be said that the contract was manifestly more closely connected with England”.[94]The matters referred to by Mr Ross are: 1. the contractual documentation is expressed in English; 2. the booking was made using the English language; 3. the contract was entered into by telephone from England; 4. the contract was entered into in the context of an overarching package holiday contract made with an English tour operator (pursuant to which accommodation in Egypt was provided at the Defendant’s hotel in Cairo); 5. the Claimant and Sir Ian Brownlie are/were British nationals domiciled in England; 6. while the Tour was not paid for using English currency, it was not priced or paid for in Egyptian currency either; 7. the Defendant is a Canadian (not an Egyptian) company”.[95]I attach no significance to the use of the English language. The English language is used as a matter of convenience in business throughout the world and indicates no connection with England. I might have been impressed if I had had any evidence of the choice of law (if any) which had been made by the parties to the contract between Cox & King Limited and the manager or operator of the Hotel, but I have no evidence of that. Nor do I have any evidence of the currency in which the Claimant and Sir Ian would have been charged, or would have agreed to pay for, the Tour and other services or extras provided while they were in Cairo.[96]In my judgment the reasoning of the Master is unimpeachable, subject to what he meant by the Hotel. In the light of the fact that I have concluded that it was not open to him to find as a fact that the contract was made with the the Egyptian company, but (as I find) the Claimant has a good arguable case, and indeed much the better of the argument, that the party to the contract was the Defendant, it follows that the applicable law pursuant to Article 4(1)(b) was not the law of England.[97]The applicable law may well be the law of Canada, and in particular of the province of Canada where the Defendant, as the service provider, has its habitual residence. But since the only issue I have to decide under this head is whether or not the contract was governed by English law, I decide that it was not governed by English law. It also seems unlikely that the applicable law will be found to be Egyptian law. I do not have to decide more than that, and it is better that I do not, since that may be an issue at trial. CORRESPONDENCE AND EVIDENCE NOT BEFORE THE MASTER.[98]On 13 November 2013 the Claimant’s solicitors wrote to the Defendant’s solicitors seeking further clarification of the Defendant’s evidence in preparation for this appeal. The letter included the following: “…we note the contents of the witness statements provided on behalf of your client from Timothy Newman, signed on 14 May 2013 and from Joseph McManus signed on 2 July 2013 (the latter served on the eve of the hearing before Master Cook). We find the “contentions” and the assertions advanced in these witness statements troubling as they are at odds with the statements made on the Four Seasons Hotels and Resorts websites and those made in and to the authors of the leading industry articles and to the authors of articles published in newspapers of record here and in the United States of America. Reference the contentions advanced by Mr Newman at paragraph 7 and 9 of his witness statement and by Mr McManus at paragraphs 5 and 6 of his witness statement, we refer you to the enclosed publicly available documents (drawing your particular attention to the following extracts): a) New York Times, David Segal “Hello fights at the Four Seasons” (published 27 June 2009), “this might surprise even its long time guests but Four Seasons – the company that is – doesn’t own hotels. It operates them on behalf of real estate owners and developers, who typically call this office in Toronto with nothing but a patch of land and a cheque book. Four Seasons participates in the design of the property and runs it, with nearly total control over every aspect of the operation, from the number of bellboys to the thread count of the sheets”… b) Fourseasons.com/about_4_seasons/service-culture/, “who we are: We have chosen to specialise within the hospitality industry by offering experiences of only exceptional quality. Our objective is to be recognised as the company that manages the finest hotels, resorts and residence clubs wherever we locate. We create properties of enduring value using superior design and finishes, and support them with a deeply instilled ethic of service. Doing so allows Four Seasons to satisfy the needs and tastes of our discriminating customers, and to maintain our position as the world’s best premier luxury Hospitality Company”…. In the light of the statements made and information contained in these extracts and in the interests of narrowing the issues that would need to be considered at the appeal hearing (in the context of the evidence served late on behalf of your client), we ask you to confirm that (of the material kind): a) The Cairo hotel was managed by Four Seasons Holdings Inc b) The Cairo hotel was operated by Four Seasons Holdings Inc c) Check In, reception and excursion booking staff were employed by Four Seasons Holdings Inc d) Check In, reception and excursion booking staff attended training organised and provided by Four Seasons Holdings Inc e) Check In, reception and excursion booking staff wore uniforms and name badges provided by Four Seasons Holdings Inc f) Excursions available to guests at the Cairo Hotel were advertised and sold by Four Seasons Holdings Inc We look forward to receiving your client’s early responses and reserve the right to draw the court’s attention to the matters raised in this letter and in the enclosures”. a) New York Times, David Segal “Hello fights at the Four Seasons” (published 27 June 2009), “this might surprise even its long time guests but Four Seasons – the company that is – doesn’t own hotels. It operates them on behalf of real estate owners and developers, who typically call this office in Toronto with nothing but a patch of land and a cheque book. Four Seasons participates in the design of the property and runs it, with nearly total control over every aspect of the operation, from the number of bellboys to the thread count of the sheets”… b) Fourseasons.com/about_4_seasons/service-culture/, “who we are: We have chosen to specialise within the hospitality industry by offering experiences of only exceptional quality. Our objective is to be recognised as the company that manages the finest hotels, resorts and residence clubs wherever we locate. We create properties of enduring value using superior design and finishes, and support them with a deeply instilled ethic of service. Doing so allows Four Seasons to satisfy the needs and tastes of our discriminating customers, and to maintain our position as the world’s best premier luxury Hospitality Company”…. a) The Cairo hotel was managed by Four Seasons Holdings Inc b) The Cairo hotel was operated by Four Seasons Holdings Inc c) Check In, reception and excursion booking staff were employed by Four Seasons Holdings Inc d) Check In, reception and excursion booking staff attended training organised and provided by Four Seasons Holdings Inc e) Check In, reception and excursion booking staff wore uniforms and name badges provided by Four Seasons Holdings Inc f) Excursions available to guests at the Cairo Hotel were advertised and sold by Four Seasons Holdings Inc We look forward to receiving your client’s early responses and reserve the right to draw the court’s attention to the matters raised in this letter and in the enclosures”.[99]On 27 January 2014 solicitors for the Defendant replied to that request. They wrote: “You have asked in correspondence whether we will answer the issues raised in your letter of 13 November. We believe that we have addressed a number of these in the witness statement of Joseph Gerard McManus but, for the avoidance of doubt we would comment as follows using the letters in your letter of 13 November. [They then proceed to answer No to each of the questions (a) to (f)]. For the avoidance of doubt, Four Seasons Holdings Inc neither own nor have any shareholding in the Four Seasons Hotel in Cairo. We trust this clarifies the position”.[100]Neither party has asked for these letters to be admitted in evidence. In any event the letters do not seem to me to take the matter any further. There remains no suggestion that the Cairo Hotel was operated or managed by Nova Park Cairo SAE, and no other manager or operator is identified. Nor does the Defendant’s letter identify from whom the information contained in it was obtained by the writer of the letter.[101]On the other hand, the Claimant does ask for permission to adduce fresh evidence. As to this CPR r.52.11(2) provides: “Unless it orders otherwise the Appeal Court will not receive … (b) evidence that was not before the lower court”.[102]Guidance on how the Appeal Court is to exercise its power to admit fresh evidence is set out in the cases discussed in the White Book 2013 Vol 1 52.11.2. The discretion must be exercised in accordance with the overriding objective. Pre-CPR cases such as Ladd v. Marshall [1954] 1 WLR 1489 remain of relevance, so that the court will have regard to the question whether the evidence could have been obtained for the hearing below, or whether it would probably have an important influence on the result of the case, and whether it is to be believed. The court must strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that each additional process should achieve the right result.[103]On 19 November 2013 solicitors for the Claimant sent to the Defendant a second witness statement made by the Claimant on 19 November 2013. In it she sets out at greater length her recollection of the conversation with the Concierge on 21 December 2009.[104]Obviously this is evidence that could have been obtained for use before the Master. The Defendant does not question that it is to be believed. However, having read it, I do not consider that it would probably have an important influence on the result of the case.[105]Ms Kinsler asks me not to admit it and I decline to admit it. This appeal is to be decided on the evidence that was before the Master.

THE CLAIMS IN TORT

[106]The further facts about the circumstances of the accident relevant to this question are alleged by the Claimant to be as follows. There were in fact two vehicles provided for the purposes of the Tour. The first vehicle collected the Claimant’s party from the Hotel at the time agreed. But during the journey it developed a flat tyre. Because it did not carry a suitable spare tyre, a second and substitute vehicle had to be sent out from Cairo. It was the substitute vehicle which was involved in the fatal accident. It was not equipped with seatbelts. The circumstances of the accident included that it occurred on an open and flat stretch of road, with no other vehicle involved, and at a time when the vehicle was being driven at an excessive speed. These facts, which led to the conviction of the driver in the criminal proceedings in Egypt, also provide a realistic foundation for a claim that the driver selected for the excursion lacked the necessary competence, and the vehicle lacked the necessary safety equipment in the form of seat belts. The claim for damage is in a seven figure sum. The special damages are based on a case that Sir Ian was a leading international arbitrator who would probably have worked well into his eighties, earning a very substantial income.[107]There is no dispute that the claims advanced in this action by the Claimant include claims in tort. There is also no dispute that the law applicable to the claims in tort will be determined by Regulation (EC) 84/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non contractual obligations (Rome II) which applies (by article 32) from 11 January 2009 at the latest.[108]The relevant provision of Rome II is: “Article 4 General Rule 1. Unless otherwise provided for in this regulation, the law applicable to a non contractual obligation arising out of a tort/delictshall be the law of the country in which the damage occurs irrespective of the country in which the event given rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occurred… 2. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraph 1… the law of that country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question”.[109]The candidates for applicable law would appear to be the laws of England, alternatively Egypt, (Article 4(1)) being the places where damage occurred, and the law of Canada (Article 4(3)) being the law of the country in which the Defendant is resident.[110]In the present case there was a pre-existing relationship with the parties, albeit not a contract between them, and that relationship was closely connected with the tort in question. The pre-existing relationship was that the Claimant was booked to stay at the Hotel, although the booking was made indirectly through Cox & King Ltd. But as already stated, the evidence before me does not show what law governed the arrangements made for that booking by Cox & King Ltd, nor with whom Cox & King Ltd had dealt.[111]There is no evidence before the court of any law other than English law. So for present purposes I shall presume that the laws of Egypt and Canada are similar to English law.[112]Whether or not this court has jurisdiction to entertain this claim does not depend upon the Claimant establishing that the law applicable to the law in tort is any particular law. The relevance of the law applicable to the tort is to separate issues, as to whether there is a sufficiently strong case on the merits of the claim, and what is the appropriate place to try the action. It does not seem to me that I need form a view as to which law applies, save to say that it seems unlikely that there will be any relevant issue of Egyptian law.[113]The relevant parts of the judgment of the Master are as follows: “43… the evidence demonstrates that the driver was not employed by the Defendant. I am prepared to accept that there may be an issue as to whether the driver was employed by the Hotel but that does not assist the Claimant for the purpose of this application.44. The real issue between the parties is whether the Defendant can be said to owe a duty of care to the Claimant. I agree with Ms Kinsler that the points made in relation to the claim in contract are relevant to this issue. Having regard to my earlier conclusions I accept her submission that any suggestion that the Defendant company owed a duty of care to the Claimant in relation to the excursion is fanciful and bound to fail. In my judgment it was the Hotel that owed any arguable duty of care to the claimant and I am bound to say that I simply cannot understand why the claim form was not served on the Hotel.45. There is also merit pending an outstanding appeal to the Supreme Court and the case Cox v. Ergo Versicherung AG [2012] EWCA 854, 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”.[114]The conclusion he reaches in paragraph 44 is dependant on his earlier conclusion in relation to contract, namely that the party contracting with the Claimant on 21 December 2009 was the Egyptian company that was the proprietor of the land and building, and which, he stated, ran the Hotel. On the footing that that was a conclusion that was not open to him, I am left without any clear conclusion by the Master as to whether or not there was a good arguable case against the Defendant in tort. However, as I read the Master’s judgment, where he states that he cannot understand why the claim form was not served on the Hotel, the implication is that he considered that there was a good arguable case in tort against whichever corporation undertook to provide the Tour on 21 December 2009 (assuming that the applicable law was similar to English law).[115]Mr Ross submits that there is a good arguable case in tort on the merits. He refers to a number of cases including Susan Parker v. TUI UK Ltd [2009] EWCA 1261 at paras 13 and 14, Moran v. First Choice Holidays [2005] EWHC 2478 (QB) Ms Nicola Davies QC sitting as a Deputy Judge of the Queens Bench Division (as she then was), and Rogers v. Night Riders [1983] RTR 324 (CA) which is cited with approval in Wong Mee Wan v. Kwan Kim Travel Services Limited [1996] 1 WLR 38 at page 33C.[116]He also cites cases from the liability of parent companies for claims in tort in respect of acts or omissions of a subsidiary: e.g. Chandler v. Cape PLC [2012] 1 WLR 311 (CA). However, since there is no suggestion by either party to this appeal that the company operating or managing the Cairo Hotel were a subsidiary of the Defendant I do not see the need to consider what the position would have been if that had been the case.[117]Ms Kinsler expresses her clients position as follows in her skeleton argument: “53. It is an open question as to whether this ground [ground (9)] preserves the position under the former rules in requiring the claimant to demonstrate that she has a completed cause of action in tort by reference to the law applicable to the tort. The defendant, does not, at this stage seek to argue that it does but reserves its position to argue the point should this matter go further. In any event, a consideration of the same issues is required at the stage of assessing the merits of the claim…54. On the current state of the law a party injured in an accident abroad who returns to England and continues to suffer the effects of his injuries in England satisfies ground 3.1 (9) (a): See Cooley v. Ramsey [2008] EWHC 129 (QB); Wink v. Croatia OsiguranjeDD [2013] EWHC 1118 (QB).55. Had the Claimant brought her claim for personal injuries against the driver of the vehicle involved in the accident ground 3.1(9)(a) would, on current authority, probably be fulfilled as ‘damage’ would have been sustained within the jurisdiction. Equally had the claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 been brought against the driver of the vehicle ground 3.1(9)(a) would probably be fulfilled.56. The Defendant does not at this stage seek to argue that the current interpretation of ground 3.1(9)(a) is incorrect. However, it reserves its position to argue its point in respect of all three claims … should this matter go further”.[118]As already noted, Ms Kinsler accepts that if (as I have held to be a good arguable case) the Defendant was the party with whom the Claimant contracted on 21 December 2009, then the Defendant was not acting as agent for the local Egyptian car hire company referred to in the correspondence from the Egyptian lawyer and Ms Waugh. It is common ground that the Concierge was agreeing, on behalf of the person or entity operating the Hotel, to provide the services as principal (whether or not it did so by the use of sub-contractors).[119]Having regard to the cases cited by Mr Ross referred to above, I find that the Claimant has a good arguable case that her claims in tort disclose a serious issue to be tried and on which she has a real prospect of success.

FORUM CONVENIENS

[120]In the light of his other conclusions, the Master did not need to express a view on whether England was the appropriate jurisdiction for the trial of this claim. However, he did say in the passage at the end of paragraph 44 of his judgment:
“I simply cannot understand why the claim form was not served on the Hotel [in Egypt]”
. That passage of course was premised on the conclusion he had already reached that the other party to the contract was the proprietor of the land and building.[121]The leading authority remains Spiliada Maritime Corporation v. Cansulex Limited [1987] 1 AC 460,476C – 478 E in the speech of Lord Goff of Chieveley. The Claimant must show good reason why service of the claim form out of the jurisdiction should be permitted. When considering this question the court should take into account the nature of the dispute, the legal and practical issues involved, and such questions as local knowledge, availability of witnesses and expense. The fundamental question is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice.[122]On the conclusions I have reached, the three jurisdictions which appear to be candidates for the most appropriate one for the trial of the action are England, Canada and Egypt. Ms Kinsler submits that the natural forum in this case is Egypt not only because the accident occurred in Egypt (which it did) but also because the contract was made in Egypt and because the law applicable to the claims in contract and tort is Egyptian law (which, in each case, is not what I have concluded). She made no submission that Canada is an appropriate forum, even on the alternative basis that I might find that there was a sufficiently strong case against it.[123]Mr Ross submits that England and Wales is clearly the most appropriate jurisdiction for the trial for a number of reasons which he sets out at length.[124]The issue which is most likely to be a live issue at any trial is the amount of special damages. That may require evidence from persons with knowledge of Sir Ian’s professional practice as an international arbitrator, and of his health. Such persons are likely to be in England. Similarly, those with knowledge of the Claimant’s injuries and damage will be herself and her medical advisers in England.[125]Although the location of the accident was Egypt, it seems unlikely that there will be any issue of fact relating to the accident itself. Nor is Egyptian law likely to apply. In the light of the conclusions I have reached it has not been necessary for me to consider whether the relevant considerations include the troubled political situation in Egypt described by Mr Donovan in his first witness statement.[126]If there remains a live issue as to whether the Defendant is the party to the contract made between the Claimant and the Concierge, then it is likely that that will depend largely on documentary evidence. If there are any hotel managers who can give evidence, the Defendant has not identified them, and there is no knowing where they might now be. There is no suggestion that there might be any witnesses from Canada.[127]In these circumstances I conclude that England is clearly the most appropriate jurisdiction in which to try this action.

THE CONDUCT OF THE DEFENDANT AND ITS ADVISERS

[128]The letters of Ms Waugh to the Claimant’s solicitors (paras 11and 15) were contemptuous. She suggested that the claim should not be brought against anyone responsible for the management of the Hotel, but against the Egyptian car hire company to whom Mr Riad had said the Concierge was “merely to relay” the Claimant’s request to be taken on the Tour. That absurd suggestion has been abandoned. But Ms Waugh has put forward no other response to the claim. She did not even fulfil her promise to follow up and request a response from insurers.[129]In the course of submissions I made clear to Ms Kinsler that I entertained serious concerns about the evidence for the Defendant. Ms Kinsler submitted to me that the Defendant was not to be criticised and that the evidence of Mr Newman and Mr McManus should be believed. She referred me to VTB Capital Plc v Nutritek International Corp [2013] UKSC 5; [2013] 2 AC 337 at paras 90-91 where Lord Neuberger of Abbotsbury PSC said:
“90. … As a matter of principle, a defendant is entitled to keep his powder dry: he can simply put the claimant to proof of its case. In general at least, that is true at any point of the proceedings. The mere fact that the defendant is challenging jurisdiction does not somehow impose a duty on him to specify his case. The onus is on the claimant to satisfy the court that there is a serious issue to be tried on the merits of the claim, and not on the defendant to satisfy the court that he has a real prospect of successfully defending it. 91. However, if the defendant chooses to say nothing, then it would be quite appropriate for the court to proceed on the basis that there is no more (and no less) to the proceedings than will be involved in the claimant making, or trying to make, out its case. Of course, in many instances, the defendant will be able to say that, although he has not submitted a draft statement of case, or produced a witness statement, setting out the details of his case, its nature is clear from correspondence, common sense, or even submissions. … I would not want to encourage a defendant to go into great detail as to his case in a long document with many exhibits, but if he is wholly reticent about his case, he can have no complaint if the court does not take into account what points he may make, or evidence he may call, at any trial. ….”
[130]That is the law. But if a defendant exercises its legal right to be wholly reticent about its case, it may also run another, non-legal, risk. In conducting themselves as they have Four Seasons Hotels and Resorts may appear to readers of this judgment to be a secretive and irresponsible organisation, intent on obstructing access to justice by their widowed guest and (indirectly) their deceased guest’s two orphaned grandchildren, all of whom suffered or died in an allegedly unsafe vehicle provided to them by Four Seasons Hotels and Resorts.[131]Further the right of a defendant to be reticent about its case does not include the right to breach the rules of the court, or to confuse the court.[132]In the form in which this judgment was circulated in draft I expressed criticisms of Mr Newman and Mr McManus for submitting witness statements which failed to comply with the requirements of CPR r.32 and the Practice Direction as set out in para 32 and following. I made these criticisms on the basis that any litigation solicitor must know how to draft a witness statement. I offered them an opportunity, if so advised, to respond to the criticism. They each wrote that they acknowledged the breaches of the Practice Direction, but stated that these breaches were inadvertent and that they had no intention to confuse or mislead the court. The solicitors are not party to these proceedings, and I can make no findings of fact in relation to what they have stated.[133]Whatever the explanation for the defective witness statements, it is unacceptable that solicitors should breach the rules in that way. If solicitors’ instructions from their clients do not enable them to make a witness statement that is in conformity with the rules, then it is their duty to the court to ask for permission (under para 25.2 of the Practice Direction: para 30 above) to file a defective witness statement. To obtain such permission they would have to give an acceptable explanation for why they need it. It they do not ask for permission it is their duty either to comply with the rules or not to file a witness statement at all. Witness statements that do not comply with the rules are likely to lead to waste of time and costs at the least, and may result in the court being confused and even misled. They are also likely to attract sanctions from the court of one kind or another.[134]I have been critical of the Master’s judgment. In fairness to him it is right that I should add two observations. First, the High Court Judge to whom the application for permission was first made dismissed it on paper (permission was given at an oral hearing). But more importantly, the conclusions of fact which the Master reached, but for which I have found no evidence, appear to me to be the conclusions which the Defendant was inviting him to reach, and which the Defendant is content that he did reach. Although the Defendant has carefully refrained from verifying those conclusions as correct in fact, it has certainly done nothing to suggest that those conclusions were incorrect.[135]It might have been better for everyone if the court had simply refused to admit the witness statements pursuant to the (much underused) power in the Practice Direction para 25.1 (para 30 above).

CONCLUSION

[136]For these reasons the appeal will be allowed, and the order giving permission to serve the claim form on the Defendant in Canada will be restored.

Cited in 3 later judgments