Rayner v Davies

Under Article 13(3) of the Brussels Convention, a consumer contract for services falls within the special jurisdiction rules only where the contract was preceded by advertising or a specific invitation addressed to the consumer in the consumer’s state of domicile, and the consumer took the necessary steps there to conclude the contract.

A specific invitation ordinarily requires positive conduct by the provider indicating that business is being solicited in that state. The court must examine the transaction as a whole and ask, in substance, who invited whom to do business. A document sent to the consumer after the consumer initiated negotiations abroad does not, without more, satisfy Article 13(3).

The claimant, domiciled in England, instructed the defendant, a surveyor domiciled in Italy, to survey a yacht berthed in Italy. The claimant first contacted the defendant, travelled to Italy, and negotiated the proposed survey there. The defendant later faxed contractual terms to the claimant in England, which the claimant signed and returned.

The claimant sued in England alleging negligent performance. The District Judge held that Article 13 conferred jurisdiction. Morison J reversed that decision, holding that the fax was not a specific invitation within Article 13(3)(a). The claimant appealed, and the defendant cross-appealed on the place of contract formation. The central issues were whether the fax was a specific invitation and whether the necessary steps for conclusion of the contract were taken in England.

1. Appeal dismissed. The Court of Appeal unanimously upheld Morison J’s decision that the English courts lacked jurisdiction. The defendant was entitled under Article 2 of the Brussels Convention to be sued in Italy, his state of domicile.
2. The court accepted that the claimant was a consumer and that the fax was an offer capable of acceptance in England. On the material available, the claimant’s case that the contract had not already been concluded in Italy was clearly the stronger case. The appropriate jurisdictional standard was a good arguable case.
3. Article 13(3) deliberately does not extend special consumer jurisdiction to every consumer contract. It requires both a qualifying invitation or advertising and the consumer’s necessary steps in the state of domicile.
4. “Specific invitation” is coupled with “advertising” and contemplates positive conduct by the seller before the contract, normally before the consumer’s involvement. The expression implies that the seller invited the business. The relevant practical question is who invited whom, although the consumer’s making the first move will not invariably determine the answer.
5. The transaction must be assessed in its broader circumstances, rather than by considering the contractual document alone. The defendant had not marketed his services in England or solicited the claimant there. The claimant had sought out the defendant in Italy, travelled there, and conducted almost all negotiations there. The connection with England was therefore tenuous, and Article 13(3) did not apply.
6. The court declined to determine whether the later wording in Article 15(1)(c) of Council Regulation 44/2001 would produce a different result. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): Appeal dismissed and costs ordered.
• High Court, Queen’s Bench Division: Morison J reversed the District Judge’s refusal to stay the proceedings, holding that Article 13 did not confer jurisdiction.
• District Judge: Held that the claimant was a consumer, that the fax was a specific invitation, and that the necessary contractual steps were taken in England.