Subsequently, B sought to commence proceedings in England against FSH, in her own personal capacity and also as her late husband’s executrix, in relation to the damages which ensued from the accident. FSH was sued on the basis that it was the owner or operator of the hotel in Cairo. B accused FSH of breach of contract in relation to the defective performance of the contract for the trip. Additionally, B alleged that FSH was vicariously liable in tort for the negligence of the driver.

As FSH was foreign-based, B had to establish that this was a case in which it was appropriate for the English court to serve the claim form outside England. Throughout all stages of litigation, FSH denied that it was the owner or operator of the hotel in Cairo. Instead, it claimed that the Four Seasons Hotel Cairo was owned by an Egyptian company with no association with FSH. However, this submission did not find favour at first instance or before the Court of Appeal. Moreover, FSH contended that the damage which formed the basis for the action against it did not fall within the scope of the relevant tort gateway set out within CPR PD 6B para.3.1(9)(a). This provision states that a claimant may seek to serve proceeding outside England in tort cases where “damage was sustained, or will be sustained” in England. According to FSH, only damage directly arising from the tort qualified under gateway 9(a). However, and drawing on a number of recent authorities,2