7E Communications Ltd. v Vertex Antennentechnik GmbH Rev 1

An agreement conferring jurisdiction satisfies article 23 of the Brussels-I Regulation where a written offer, signed by the offeror, expressly incorporates general conditions containing a jurisdiction clause and is accepted in writing by the offeree. The contract may comprise two signed documents. It need not be contained in one document signed by both parties.

An express reference to the general conditions establishes written consent. The jurisdiction clause need not be mentioned separately, and the accepting party need not possess a copy of the conditions. By contrast, an agreed place of performance chosen solely to establish jurisdiction, without a real connection to contractual performance, cannot confer jurisdiction unless article 23 is satisfied.

The claimant bought satellite antennae from the defendant under a written quotation and purchase order. The defendant’s quotation stated that its general terms and conditions applied. Those conditions, which were not supplied to the claimant, conferred exclusive jurisdiction on the court at the defendant’s German headquarters.

The claimant brought proceedings in England after purporting to reject the antennae. The Central London County Court declared that the English court lacked jurisdiction. Although it refused permission to appeal, it purported to direct that any appeal should proceed to the Court of Appeal. Rafferty J subsequently granted permission to appeal in the High Court. Jack J held that the High Court lacked appellate jurisdiction, but determined obiter that the English court had substantive jurisdiction.

The issues were whether the county court could transfer an appeal after refusing permission and whether the parties had made a written exclusive-jurisdiction agreement satisfying article 23 of the Council Regulation (EC) 44/2001.

1. The claimant’s appeal on appellate jurisdiction was allowed. Once the county court had refused permission to appeal, no appeal existed which it could transfer under rule 52.14 of the Civil Procedure Rules 1998. The rule distinguishes an appeal from an application for permission. Only an appeal may be transferred. Because the order was an interlocutory decision of a circuit judge in an unallocated claim, the renewed permission application lay to the High Court. Rafferty J had granted permission, so Jack J should have heard the appeal: [2002] EWCA Civ 428 applied.

2. The defendant’s appeal on substantive jurisdiction was allowed. Article 23 of the Council Regulation (EC) 44/2001 requires the court to establish strictly and precisely that the jurisdiction clause was the subject of consensus. That requirement was satisfied. The defendant made a signed written offer expressly incorporating its general conditions, and the claimant accepted that offer by a signed purchase order which identified the quotation.

3. There is no material distinction between a contract contained in one document signed by both parties and a contract evidenced by a signed written offer and a signed written acceptance. In either case, an express reference to general conditions containing a jurisdiction clause establishes written consent. Neither a specific reference to the jurisdiction clause nor the accepting party’s possession of the incorporated conditions is required: Salotti v RUWA Polstereimaschinen GmbH [1976] ECR 1831 and Credit Suisse Financial Products v Societe Generale d’Entreprises [1997] CLC 168 applied.

4. The circumstances differed from a contract which merely refers to an earlier offer that in turn incorporates general conditions. Whether such indirect incorporation requires proof that the conditions were supplied was left for a future case. Here, the contract itself expressly and directly referred to the conditions.

5. Although unnecessary to the result, a contractual place of performance cannot be designated solely to select a court where that place has no real connection with performance. If article 23 had not been satisfied, delivery in England would have provided strong evidence of an English place of performance and jurisdiction under article 5.1(b).

6. The parties had submitted their dispute to the exclusive jurisdiction of the relevant German court. The English court was required to decline jurisdiction.

1. Court of Appeal (Civil Division): The claimant’s appeal on appellate jurisdiction was allowed. The defendant received permission to appeal the substantive determination, and that appeal was also allowed. The court held that the relevant German court had exclusive jurisdiction: [2007] EWCA Civ 140 .

2. High Court: Jack J held that the High Court lacked jurisdiction to grant permission or hear the appeal. He nevertheless determined obiter that the English court had substantive jurisdiction. Rafferty J had previously granted the claimant permission to appeal but had refused to transfer the appeal to the Court of Appeal.

3. Central London County Court: His Honour Judge Knight QC declared that the English court lacked jurisdiction and set aside service. After refusing permission to appeal, he purported to direct that any appeal should be made to the Court of Appeal.