Taj Mahal Hotel injury claim allowed to proceed in English courts

24 January 2014 by

IndiaTajMahalhotel081129_432Pike and Doyle v Indian Hotel Companies Ltd [2013] EWHC 4096 (QB) – read judgment

Philip Havers QC and Peter Skelton of 1 Crown Office Row represented the claimants in this case. They have nothing to do with the writing of this post.

This sad case arose out of the 2006 terrorist attack on the Taj Mahal Palace, Mumbai, India. The claimants, who had spent 15 days backpacking around Goa, decided to treat themselves to one night of luxury at the hotel before they were due to fly home from Mumbai. Shortly after the attack began the claimants hid in their room, locked the door and turned off the lights. Some hours later they tried to escape through the window. Their room was on the third floor of the tower part of the hotel. They tied together sheets, curtains and towels to make a rope. They hung it outside their room and the first claimant went first. The “rope” came apart and he fell to the ground suffering serious spinal injuries which have left him paraplegic. The second claimant was rescued subsequently. She did not suffer physical injuries but claims for continuing psychiatric consequences.

There were a number of procedural issues before the court to be decided before the compensation claim could go ahead, the chief of them being whether the English courts were the most appropriate forum (forum conveniens) for this claim.

The defendants pointed to the fact that English courts have always been cautious in asserting jurisdiction over foreigners.

 If there is any doubt about the construction of the rule it must be resolved in favour of the foreigner.

This submission had been addressed head-on by Tugendhat J in  Cooley v Ramsey [2008] EWHC 129 (QB) at [35] – [46]. He pointed out that the rules relating to forum in the EU were not assimilated to those pertaining to non party states.  It is established in the case law of the European Court of Justice that the Brussels Convention is not relevant to the construction of the Civil Procedure Rules on forum because the two schemes are “fundamentally different” in structure and policy.

The EU rules seek certainty at the price of inflexibility: thus forum conveniens arguments are not permitted (see Owusu v Jackson [2005] ECR I-01383). By contrast, in respect of non-regulation countries, the common law rules adopt a more flexible legal framework which admits forum conveniens and makes the assumption of jurisdiction discretionary.

As has been pointed out many times this discretion is also a proper and proportionate brake on the over-exercise of jurisdiction.

The leading authority on forum is Spiliada Maritime Corporation v Cansulex Limited [1987] 1A.C. 460. Not only is the burden of proof on the claimant to persuade the court that England is the appropriate forum for the trial of the action, but he also has to show that this is clearly so.  The claimants conceded that the “natural forum” ie. “that with which the action had the most real and substantial connection” was India. But they did not believe they would be able to obtain justice by proceeding in the Bombay High Court owing to delays endemic in such proceedings. There would also have been no funding available for them to sue in India. Stewart J accepted this, having understood from the foreign process section of the Royal Courts of Justice that  it was taking “an inconsistent eight months” for the Indian Central Authority to serve proceedings on its nationals after receiving a request to do so from London.

The judge also took into account the fact that if the proceedings were to go ahead in this country the applicable law would be Indian law, and breach of duty would have to be tested against Indian, not English standards.  He regarded this as a matter of “some, but not a very strong”, significance which would be weighed in the balance. English courts were “well used” to determining such cases. Then he had to consider on the one hand the practicalities of a trial in India for the claimants and the claimants’ witnesses and on the other the practicalities for the defendants and the defendants’ witnesses.

As far as the First Claimant is concerned, he is now paraplegic and suffers from ongoing problems managing his bowels and bladder. It would be extremely difficult for him to travel to and stay in India, apart from the obvious psychological difficulties in returning to Mumbai. The last point also is of relevance for the Second Claimant. If the claim was heard in England, both could attend a trial with relatively little difficulty.

As to the defendants, a substantial number of their witnesses could give evidence by video link;  a number of witnesses were likely to be agreed or their evidence would be relatively uncontroversial and able to be taken on commission. Documents could readily be scanned and made available to the parties in electronic form in England and Wales. As for the question of delay, Stewart J noted that the defendants had undertaken to cooperate to move proceedings along as quickly as possible if the case took place in Mumbai, but whilst “no doubt a worthy and sincere expression”, he was not persuaded that this would have a significant effect on the timetable of a case in India. When considering whether this case would be expedited in the High Court in Mumbai, such that the first instance trial would be heard earlier than normal, the judge noted the claimants’ expert’s observations that

almost every Plaintiff would at some stage or other try to expedite proceedings, but in the vast majority of cases such applications are not successful. He said that he would not expect any unusual public sympathy for the Plaintiffs to the extent that the court would give preference to their case over other litigants in the queue. He said that there are many hard luck cases stuck in the courts of India and the judge has to deal with them with an even hand.

Stewart J was not persuaded that expedition was more than a possibility. Given that there had been an non adversarial enquiry and a criminal trial of the one terrorist who was captured, he was not convinced that the Indian courts would regard this case as being of such importance as to require expedition.  His estimation was that the time this case would take to reach the probable end stage in India would be some 20 years ie. about 15 years in High Court plus 5 years on first appeal. There was the possibility of an appeal to the Supreme Court delaying the claim for another 3 – 4 years and of interlocutory appeals from the original jurisdiction adding to that total period.

Overall, I remain with the bracket of 15 to 20 years.

Compared to that, the claims in England would give the prospect of at least the interim payment for damages and (in any event) resolution of the liability issue in 2 to 3 years. This was a very significant factor in the judge’s view. In particular,

  1. The First Claimant is a man who is not quite 34 years of age. A favourable decision in England would give him the money substantially to improve his standard of living and enable him to better come to terms with his disability when he is about 36 years of age. If the proceedings have to be brought in India then he would be something like 50 to 55 years of age before that occurs. Further, proceedings in England, if the claim fails, will be over and done with in a couple of years or so. In the event of failure, the Claimants will have to put this matter behind them and get on with their lives as best they can.
  2.  Five years have already passed and the availability of witnesses and the quality of their recollections will have been affected. It seems very likely that whatever recollection they retain over the next couple of years will be significantly undermined if the delay is 15 to 20 years. Further, witnesses are much more likely to be alive and/or available for an English trial than a trial in Mumbai.

Taking all these factors into account, it was “clearly the case” that England was the appropriate forum for the trial of this action.

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