Update 12 06 2023 note I forgot to mention Master Marsh’s discussion [50] of what he calls the ‘read-across’ (consistency of application or parallel application) between Rome I and Brussels Ia’s A7(2). As the CJEU itself did in Kainz, he points out ‘It seems to me that this should lead the court to be cautious about over-reliance on cases under Rome II and its predecessor.’ He is right.
In MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch), Marsh M admirably summarises the extensive authorities both English and CJEU (and almost all of them discussed on this blog) on ‘purely economic damage’, in the case at issue at the applicable law level with a view to identifying overcharging on card transaction services. The claim is non-contractual for claimant operated through a ‘sponsor’, RRS, a London-based bank.
[55] Visa’s primary case is that the direct damage occurred at the time when Visa messaged RRS with transaction amounts that are said to be incorrect. Visa invites the court to follow a line of cases dealing with negligent misstatement. In a case of negligent misrepresentation it is said the damage will occur at the place where the misstatement is received and relied upon (compare the discussion in Kwok v UBS). Visa’s alternative case is that direct damage occurred when RRS failed to collect an Optional Issuer Fee – OIF, as a result of the defendant’s inaccurate messaging, for onward transmission to the claimant in France. [57] On either case the defendant says that damage occurred in England being the “direct” damage resulting from the wrong and that the loss felt ultimately in the claimant’s bank account in France is indirect damage.
the judge [68-5] holds that
where the claim is for the non-receipt of OIFs, the wrong only has a direct economic effect upon the claimant by non-receipt of OIFs. That effect is likely to have been felt by the claimant in France. It is not at all obvious that the effect of the wrong as it resonated in financial terms should be seen as an indirect consequence of the previous events.
The case of course once again shows the intricate difficulty of the (in)direct damage distinction and I agree with Master Marsh that certainly at the level of an application for strike-out, Visa’s arguments are not convincing to blow the suggestion of French law being the applicable law, out off the water.
Geert.
gavc law - geert van calster 