Master Kay QC has granted a declaration that the defendant (D) was a consumer for the purposes of the Recast Brussels Regulation (1215/2012) (RBR) and, accordingly, should have been sued in Italy, his place of domicile, and not in England.
The claimant (C) was a London casino. C’s agent (P) had, for consideration from C, issued a specific telephone invitation to D to gamble at the casino, also offering to cover all of D’s expenses of the trip to London. The facility under which C made funds available to D at the casino gave C free rein to choose where to sue.
C claimed that D owed it £250,000 under the facility and sued D in England. D contested jurisdiction, asserting that he was a consumer under the facility which gave him the right, under Article 18(2) RBR, to be sued in Italy.
The key issue was whether, in inviting D to gamble at the casino, C had “directed” its “commercial or professional” activities to Italy, the place of D’s domicile, for the purposes of Article 17(1)(c) RBR. If C had done so, that engaged Article 19 RBR which, in turn, only allowed the RBR presumption that D would be sued in the place of his domicile to be displaced by an agreement made after the relevant dispute had arisen.
There was no previous authority directly on point. The most helpful decisions were Peter Pammer v Reederei Karl Schluter GmbH & Co. KG (C-585/08) and Oak Leaf Conservatories Ltd v Weir [2013] EWHC 3197 (TCC) which established that the court needed to consider whether:
- The trader had manifested an intention to establish commercial relations with consumers from one or more other member states including that of the consumer’s domicile.
- There was evidence demonstrating that the trader envisaged doing business with consumers domiciled in other member states in the sense that it was minded to conclude a contract with those consumers.
Here, it was “impossible to differentiate between the efforts of these agents [including P] and the efforts of those described in Pammer and in Oak Leaf Conservatories as ‘an agent or door-to-door sales man'”.
This decision is perhaps a surprising application of the special rules in the RBR on jurisdiction over consumer contracts, which are intended to protect consumers as the weaker party but, as Master Kay stated, it was irrelevant whether D was an experienced and sophisticated gambler because “the Regulations do not differentiate between degrees of consumer” and “there cannot be different subjective rules which apply to different types or categorisations of ‘consumer'”.
Case: Les Ambassadeurs Club Ltd v Vona [2018] EWHC 3149 (QB) (19 November 2018) (Master Kay QC, sitting as a High Court Judge). Credit: Practical Law