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MEMORANDUM

TO: A Supervisor

FROM: A Trainee

DATE: 16 December 2016

RE: MR MEREDITH – SERVICE OUTSIDE OF JURISDICTION

Thank you for your memorandum dated 16 December 2016 requesting some specific research as above. I have set out below the results of my research.

  1. Brief outline of the issues/ facts

Mr Meredith had last year arranged to go on an excursion through the Castle Hotel run by Castle Holdings Incorporated, a Canadian company, for him and his civil partner. The excursion he had chosen was to the Kisangai Reserve in Kenya which he had booked through a phone call he made to the concierge at Castle Hotel. He was seriously injured and tragically his civil partner was killed in a car accident during an excursion with Kisangai Excursions which had been organised through the concierge at the Castle Hotel. Mr Meredith does not wish to pursue his claim in Kenya and has instructed this firm to issue proceedings in the High Court, to be served upon the defendant in Canada. Both he and his late partner are UK citizens.

  1. Causes of action

I ascertain the causes of action would include a claim under contract law based on the main requirements for formation of a valid contract and a possible action in tort for death and personal injury due to negligence. The prospects of succeeding in either or both of these causes of action would greatly depend on issues around jurisdiction based on the relevant case law, legislation and regulations governing these areas of law and practice which I will discuss in more depth below.

  1. Outcomes from my research

(i) Formation of contract

My findings based on my research into law and procedure are set out in outline in the attached research trail document, and applied to the client’s case. The first issue to deal with is clarifying how and where a valid contract was agreed. Mr Meredith telephoned the office of the concierge at the Castle Hotel by telephone “shortly before leaving England” and booked his chosen excursion to the Kinsangai Reserve. The established view in the key cases of Entorres v Miles Far East[1955] 2 QB 327 Court of Appeal and Brinkibon Ltd v Stahag Stahl Gmbh [1983] 2 ac 34n is that contracts are formed in the place where acceptance is received by the offeree. If it can be shown that Mr Meredith in his telephone conversation with a member of staff at the concierge booking his excursion, that acceptance was received by him in England then the contract would be governed by English law. If it cannot be shown this was the case then this would fall foul of the Brinkibon case decision where the contract was deemed to have been completed in Vienna not England and governed by the law in that jurisdiction. The most relevant recent case on jurisdiction a claim for both contractual and non-contractual issues where an accident happens abroad on a holiday is booked from the UK is Brownlie v Four Seasons Holdings Incorporated [2015] EWCA 665. In this case Arden LJ giving judgment was happy the jurisdictional gateway issue was satisfied for the Court of Appeal to have jurisdiction in the case based on the facts (the case law on instantaneous communication referred to above was dealt with in the case). If the client’s case was brought within the terms of the Brussels Convention (Rome I for contractual issues) it would need to be shown the contract was formed within the jurisdiction. The claimant will have a good arguable case in contract if the above test on acceptance is established. In terms of the contracting parties, Castle Holdings Incorporated run the hotel group, so based on the logo on the brochure and our own research and the conclusions in Brownlie on the same issue, they are the correct party to serve. It may be advisable to sue the Castle Hotel itself also. The issues around tort and personal injury are dealt with next below.

(ii) Tort action

This is a more complex area where jurisdictional matters in non-contractual claims may cause difficulties in the client’s case. In Brownlie the claimant didn’t succeed in showing her claims for her own personal injury within the terms of the Law Reform (Miscellaneous Provisions) Act 1934. The “damage” she had suffered in the motor accident in Egypt was not seen as being sustained within the jurisdiction, and was consequential loss only. This did not satisfy the criteria within Rome II Arden LJ ruled . This may cause problems for Mr Meredith also as his accident appeared to have occurred as part of an excursion in Kenya. Rome 11 of the Brussels Convention governs jurisdiction gateways around non-contractual cases along with CPR 6B 3.1 `the jurisdictional gateways’ and CPR PD 6B 3.1 (9) (a) that `damage was sustained within the jurisdiction’. This may be a difficult barrier to overcome if the current interpretation of damage sustained within the jurisdiction excludes wider consequential loss along the lines of Booth v Phillips [2004] 1 WLR 3292 and Cooley v Ramsay [2008] EWHC 129 (QB) where the gateway was much wider. In Brownlie the claimant was able to succeed in her other cause of action under the Fatal Accidents Act 1976 as a direct loss as a dependent of her husband within the jurisdiction, rather than consequential loss. This may not be possible in the client’s case unless he is a dependant of his late civil partner but this is unclear in the note.

  1. In conclusion

(1) The claimant if he can fulfil the above requirements for formation of a contract being concluded in England will have an arguable case in English law and the courts here have jurisdiction.

(2) In terms of personal injury this is more complicated. The claimant is now required to show direct damage rather than consequential or indirect damage/loss and the prospects of success on this limb may be more uncertain.

I hope my response was useful.

Regards

A Trainee