Tag: looking over the fence

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Pal v Damen. A haywire engagement with the consumer, contract section of Brussels Ia.

Pal v Damen & Anor [2022] EWHC 4697 (QB) is another application (compare Clarke v Kalecinski) of Brussels Ia’s consumer section to cosmetic surgery contracts. Respectfully, the analysis is a botched job.

Claims are both in contract and in tort, as is usual in this type of litigation. Jurisdiction on the basis of the consumer title against the Belgium-based surgeon is undisputed, as is the lack of jurisdiction under Article 7(2)’s tort gateway against the clinic where the surgery was performed, locus damni (direct damage, CJEU Marinari) and locus delicti commissi both being in Belgium. The core question is whether there is a contract between surgeon and /or the clinic and the patient, and whether this is a consumer contract.

The second question needs to be determined first. The clinic essentially provides the hardware for the surgeon, but also ensures patient flow via its website http://www.wellnesskliniek.com which without a doubt meets with the  CJEU Pammer /Alpenhof criteria and therefore ‘directs its activities’ towards the UK. Its general terms and conditions, of which it is somewhat disputed that claimant ticked the relevant box, state ia that the clinic ‘is not party to the treatment agreement between the physician and the patient.’ 

The  expert evidence [25] ff centres around Belgian law. Expert for one of the defendants is their Belgian counsel, and Cook M dismisses his report [55] as not meeting relevant CPR requirements on expert evidence. On the basis of the remaining evidence, the judge finds [59]

the Claimant has established a good arguable case for the existence of a contract for medical treatment and /or medical services between her and the Surgeon and accordingly this Court has jurisdiction over that claim. The Claimant has failed to establish a good arguable case for the existence of a contract for medical treatment and /or medical services against the Clinic and accordingly the Court does not have jurisdiction over that claim.

With respect, the direction of analysis is entirely wrong. The first line of enquiry should have been whether there is a consumer contract with either or both of the Belgian parties, and if there is with one, whether the other party could have been caught in its jurisdictional slipstream. Á la Bonnie Lackey but then in the opposite direction: in Bonnie Lackey the question was whether persons in the immediate orbit of the undisputed ‘consumer’-claimant, may also sue under the consumer title. In current case, the question would be whether those in the immediate vicinity of the business-defendant, may be sued under the consumer title. The existence of a consumer contract is entirely an EU law question, not a Belgian law one.

Next, if the decision were taken that at least one of the parties is not caught by the consumer title, the existence of a ‘contract’ (for the provision of ‘services’) under Article 7(1) would be triggered, as would the forum contractus under Article 7(1)a, with an analysis of where the services were or should have been provided. This, too, is an analysis that requires EU law and EU law alone. [There is no trace in the judgment of a choice of court and /or law which for the former per A25 Brussels Ia may require Belgian law, with renvoi, a lex fori prorogati but even then only for the material ‘consent’ issue].

Belgian law does not come into this analysis at all, unless, potentially and most unlikely, one argues that the A7(1) analysis requires the conflicts method, should a contract for medical services not be caught by Article 7(1)’s ‘provision of services’: in that case, Rome I’s decision tree would be required to determine lex contractus and place of performance. Even then however it is not at all certain that Belgian law would be the outcome of Rome I’s matrix.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff, 2.385 ff.

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Winslet & Ors v Gisel. Textbook application of De Bloos and looking over the fence to determine forum contractus.

Winslet & Ors v Gisel, The Estate of [2021] EWHC 1308 (Comm) is a brilliant example to teach the ‘looking over the fence’ method for determining forum contractus under Article 7(1), for contracts that do not fall within the default categories and whence the CJEU De Bloos place of performance bumps into the limits of harmonisation following CJEU Tessili v Dunlop. Confused?: the judgment certainly helps.

Claimants, domiciled at England, seek to recover from the estate of a late friend, a considerable sum by way of repayment of principal in respect of a number of interest-free loans between friends (the borrower domiciled at France).

At [16] Butcher J holds (despite considering the broad interpretation of ‘services’ by the AG in Corman-Collins /Maison du Whiskey) ‘In my judgment, the simple provision of money to a friend, which is not undertaken as part of a business of lending money, probably does not qualify as the provision of a service’ (per A7(2), GAVC – reference is made to C-533/07 Falco Privatstiftung v Weller-Lindhorst [29]: “The concept of services implies, at the least, that the party who provides the service carries out a particular activity in return for remuneration.”

The answer to the question ‘what is the place of performance of the obligation to repay’ therefore leads to Rome I per CJEU Tessili v Dunlop and to Article 4(2) Rome I. [26]

‘In the context of banking services, it is, at least ordinarily, the lender that renders characteristic performance of a loan agreement in providing the principal sum to the borrower’ (reference to CJEU Kareda). [27] ‘The question of which party renders the characteristic performance of a loan agreement outside the sphere of financial services has been viewed as rather less clear cut.’ [32] ‘pursuant to the contracts of loan which are in issue, claimants loaned money in return for a promise to repay.’ They, it is held, rendered characteristic performance under the Loans.

As a result, the Loans are governed by English law, as England is the place where each claimant has his or its habitual residence, and English law therefore determines the place of performance, which it does at the creditor’s place of residence or business (contrary it would seem to the position under French law.

Superbly clear analysis.

Geert.

EU private international law, 3rd ed. 2021, 2.401 ff.

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Back to the 80s. Arthur Scargill, submission (voluntary appearance) under Brussels Ia and applicable law for statutes of limitation.

In [2019] EWHC 1359 (Comm) National Union of Mineworkers v Organisation Internationale de l’energie et des mines defendant is French-domiciled and represented by its chair, Arthur Scargill. That’s right, many of us whether Brits or not will remember him from the 1970s and 1980 mine strikes. (Unlike what some think, he did not though feature in the Tracey Ullman cover of Madness’ ‘my girl’: that was Neil Kinnock.

Of more immediate relevance for the blog is the discussion at 19 ff on jurisdiction and applicable law.

Defendant is an international body to which a number of trade unions are affiliated. Those unions operate in different countries but all represent workers engaged in the fields of mining and/or energy supply. The name the Defendant uses in English is the International Energy and Mineworkers’ Organisation (“the IEMO”) and it is the successor to the International Mineworkers’ Organisation (“the IMO”) following a merger in 1994.

The proceedings relate to the parties’ respective rights in relation to sums recovered by the Defendant from Mr. Roger Windsor in August 2012 after prolonged legal proceedings in the French Republic and in England. Those proceedings were undertaken in the name of the Defendant but funded in part by the Claimant. There is a shortfall between the sums recovered and the amounts of the principal debt and the legal costs of the proceedings. The parties are in dispute as to the distribution of the sums recovered from Mr. Windsor; as to which should bear any shortfall between the sums recovered and the costs incurred in the proceedings; and as to the amounts which each has paid by way of costs in those proceedings.

The underlying indebtedness which resulted in recovery being made against Mr. Windsor derived from a loan of £29,500 which the Claimant made to him in 1984. He was then the Claimant’s Chief Executive Officer and the loan was made by way of assistance with house purchase following the relocation of the Claimant’s headquarters from London to Sheffield in 1983. There was a repayment of that loan in November 1984 but it is common ground that to the extent that there was such a repayment it came from funds which had been lent to Mr. Windsor. In 1986 the right to recover payment from Mr. Windsor (either of the original loan or of the subsequent loan) was assigned to the IMO.

Claimant argues the courts of England and Wales have jurisdiction by reason of Articles 7(1) and 25(1)(b) Brussels Ia (by virtue of an agreement made in 1990), and that in any event defendant is to be treated as having accepted that the court has jurisdiction to try this matter (an Article 26 ‘prorogation’, ‘submission’ or ‘voluntary appearance’ in other words).

Eyre J at 24 agrees that submission has taken place: CPR rules (Pt11) provide the details the procedure to be followed by a defendant contesting jurisdiction. Defendant did make an application to the court within 14 days of filing the acknowledgement of service, as requested by CPR 11. However, it expressly accepted that the application was to be regarded as relating to the questions of limitation and of the effect of the Release Agreement. In its application it made extensive reference to Brussels Ia but did so in that context. In particular that material was put forward in support of the contention that the claim was statute-barred either by reference to the Limitation Act 1980 or by reference to the French limitation provisions. There was in other words no wider or more fundamental challenge to the court’s jurisdiction and the realisation probably in hindsight that jurisdiction may not be that straightforward, cannot impact on that original application.

Had there not been submission, interesting discussions could have ensued I suspect on the place of performance of the agreement (unless clear choice of court had been made), England as a forum contractus, and I for one shall be using the case in my classes as a good illustration of the ‘conflicts method’ (looking over the fence)

Attention then turns to the issue of applicable law for the time-barred argument: at 26: ‘Defendant also argued that the proceedings were to be regarded as subject to French law and in particular the French limitation provisions which impose a time limit of three years for claims. The Defendant made reference to the Civil Jurisdiction and Judgments Act 1982 and the Foreign Limitation Periods Act 1984. The contention was that French law was applicable because the judgments against Mr. Windsor were obtained in France and then registered in England and Wales. That argument was misconceived. Such an argument might have relevance if the issue were one of the enforcement of the judgments against Mr. Windsor though I make no finding on that question. The current proceedings are not concerned with the enforcement of the judgments against Mr. Windsor but with the distribution of the sums which have been received by the Defendant as a result of the litigation against Mr. Windsor. It follows that the provisions to which the Defendant made reference can have no relevance to the current proceedings. The Defendant made passing reference to the fact that it is domiciled in France but this was not the principal basis of the contention that French law was applicable and without more it would not cause the parties’ dealings to be governed by French law. In those circumstances the parties’ rights and liabilities are to be determined by reference to the law of England and Wales and any questions of limitation are governed by the Limitation Act 1980.‘

I am not privy to the submissions on applicable law, but I am assuming that there must have been some discussion of the impact of the 1980 Rome Convention. Not the Rome I Regulation which would not have applied ratione temporis. That Regulation like Rome II has not altogether straightforward provisions (as I have noted on other occasions) on procedure being covered by the lex contractus. Whether Eyre J classifies the limitation issue as being covered by English law per lex fori or alternatively as lex causae (lex contractus of the 1990 agreement) is not clear.

Back in the 80s I would have never dreamed of bumping into Mr Scargill again in the context of an interesting conflict of laws issue.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 1, Heading 1.3.1, Chapter 2, Heading 2.2.7.

 

 

 

 

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