Kristina Lukacova’s successful jurisdiction challenge in the High Court


Reference:
[2018] EWHC 3149 (QB)

Date:
19th November 2018

Court:
High Court

Facts:

The Claimant, the owner and operator of a Mayfair casino, had invited the Defendant, an Italian entrepreneur, to come to London to gamble at its casino. The Claimant offered (through an agent based in Italy) to cover all of the Defendant’s expenses, including his flights, hotel accommodation for the duration of the stay and complimentary tickets to a Chelsea game. The Defendant accepted the offer. Subsequently, the Claimant commenced proceedings against the Defendant in England. 

 

The Defendant challenged jurisdiction of the English courts under chapter 2, section 4 (Jurisdiction over consumer contracts) of the Brussels Regulation (recast) (“the Regulation”). The Defendant argued that article 18(2) of the Regulation applied, under which proceedings against a consumer may only be brought in his Member State of domicile (i.e. Italy).

 

Decision

Master Kay QC decided that the English court did not have jurisdiction for the following reasons:

 

(i) The starting point under the Regulation is that the Defendant should be sued in the Member State of his domicile. This principle may be departed from (inter alia) by a jurisdiction agreement which satisfies the requirements of article 25 of the Regulation. However, consumers are given additional protection. Under article 18(2) of the Regulation, proceedings against a consumer may only be brought in his Member State of domicile. Article 18(2) may be departed from only by a jurisdiction agreement which is entered into after the dispute has arisen, or which confers jurisdiction on the court in which both parties are domiciled or habitually resident (article 19). The jurisdiction agreement in this case satisfied neither condition. 

 

(ii) The key question was whether the Claimant had directed its commercial activities to Italy for the purposes of article 17(1)(c) of the Regulation. The Court considered whether the Claimant had manifested an intention to establish commercial relations with consumers from one or more Member States, including Italy. Such intention may be implicit in various methods of advertising, whether disseminated generally (e.g. by the press or television) or addressed directly (e.g. offers made by door-to-door salesmen). In circumstances where (on the Claimant’s own evidence) the Claimant had a policy of using agents in Italy to establish commercial relations with consumers based in Italy, the Claimant had directed its commercial activities to Italy for the purposes of article 17(1)(c). The fact that the Claimant and its activities were otherwise based in London was irrelevant. Accordingly, article 18(2) of the Regulation applied and the English court did not have jurisdiction over the claim.


Judge:
Master Kay QC

Comment:

This case is a reminder to any business marketing its commercial activities in other Member States that it may only be able to bring proceedings against consumers in their Member State(s) of domicile. This may be the case even if the parties enter into a jurisdiction agreement, unless it satisfies one of the stringent requirements set out in article 19 of the Regulation.

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