Coys of Kensington Automobiles Ltd v Pugliese

For jurisdiction agreements under Article 23 of the Judgments Regulation, consensus must be demonstrated clearly and precisely. The applicable standard is a good arguable case, requiring the party invoking the clause to show a much better argument than the opposing party.

Where written terms expressly incorporate standard conditions containing a jurisdiction clause, the agreement may satisfy Article 23 even if the signatory did not possess the conditions or understand their language. The question is assessed objectively by construing the signed document against its relevant background. A specific reference to the jurisdiction clause is unnecessary where the contract expressly refers to the incorporated conditions.

The claimant, an auctioneer, appealed against Master Foster’s decision that the English courts lacked jurisdiction over its claim against an Italian defendant. The claimant relied on a signed telephone bidding form referring to its conditions of business, which contained an exclusive English jurisdiction clause.

The defendant denied participating in the auction and argued that she had not known of the conditions, had not received the catalogue and could not understand the English wording. The appeal concerned whether the form provided clear and precise written evidence of consensus under Article 23 of Council Regulation 44/2001.

1. The appeal was allowed. The court declined to rehear the matter under CPR 52.11(1)(b), holding that the Master’s reasons were sufficient for a review.
2. The Article 23 issue was governed by EU law. The court treated the suggestion in Bols Distilleries BV v Superior Yacht Services Ltd that national law might govern this issue as having been stated per incuriam insofar as it conflicted with the relevant EU law.
3. The applicable test was whether the claimant had a good arguable case, meaning a much better argument than the defendant that the requirements of Article 23 were met and that consensus had been clearly and precisely demonstrated.
4. Article 23 required objective examination of the written document and its relevant background. Subjective evidence that the defendant did not know of, read or understand the conditions was not determinative.
5. The form expressly referred to bids being treated as offers made within the conditions of business and the important notice printed in the catalogue. Applying Salotti, Credit Suisse and 7E Communications, that reference was sufficient in principle. The clause did not need to be specifically identified, and the defendant need not have had a copy of the conditions readily available.
6. Objectively construed, the defendant’s signature, completion of the telephone-bidding section and the form’s express reference to the conditions gave the claimant the stronger argument that the jurisdiction clause formed part of the agreement. The court therefore held that the Article 23 requirements were satisfied and that the English courts had jurisdiction.

• High Court (Queen’s Bench Division): On appeal from Master Foster’s decision dated 23 June 2010, the appeal was allowed and the English courts were held to have jurisdiction.