Weco Projects APS v Piana & Ors

For jurisdictional purposes, a contract’s classification depends on its principal purpose at the time of contracting. A contract whose purpose is transporting goods is a contract of transport, even where the service provider may arrange carriage or subcontract performance. A dual-purpose contract falls outside the consumer jurisdiction rules where its business purpose is more than negligible.

Article 8(1) of the Brussels Recast Regulation requires a sufficiently close connection between claims against different defendants, assessed by reference to the risk of irreconcilable judgments and legal certainty. A Himalaya clause extending contractual defences to servants, agents or subcontractors does not ordinarily extend an exclusive jurisdiction clause. A party seeking contractual rights must accept the contract’s jurisdiction clause under the conditional-benefit principle.

Weco, Peters & May Limited and Peters & May S.R.L. brought English proceedings concerning the loss overboard of a yacht during carriage from Antigua to Genoa. Mr Loro Piana, the yacht’s user, had commenced proceedings in Milan. The English claims sought negative declaratory relief against Mr Loro Piana, Credem Leasing SpA and the Peters & May entities.

The applications concerned whether the English court had jurisdiction under the Brussels Recast Regulation and whether contractual jurisdiction clauses bound the parties. The issues included the transport-contract exclusion from consumer jurisdiction, consumer status, the Consumer Rights Act 2015, Article 8(1), a Himalaya clause, and the conditional-benefit principle.

1. Jurisdictional test. The court applied the good arguable case approach endorsed in Kaifer Aislamentos SA de CV v AMS Drilling Mexico de CV [2019] 1 WLR 3514 and Goldman Sachs International v Novo Banco SA [2018] UKSC 34. The claimant had to provide a plausible evidential basis for the jurisdictional gateway. Where possible, the court had to reach a reliable view on the available material.
2. Transport contract and consumer jurisdiction. The booking note was a contract of transport within Article 17(3) of the Recast Regulation. Its principal purpose, judged when made, was transporting the yacht. The fact that PML could arrange carriage or subcontract it did not alter that conclusion. The jurisdiction clause was therefore not invalidated by the consumer provisions of the Regulation.
3. Consumer status. The relevant dual-purpose test was whether business use was negligible. Mr Loro Piana failed to establish that the yacht’s business use was negligible. Its use in marketing, sponsorship, product testing and related activities was more than negligible. He therefore could not invoke the consumer jurisdiction provisions. For the purposes of the Consumer Rights Act, however, the transport was mainly for non-business purposes, so he was a consumer.
4. Consumer Rights Act. The court held that the jurisdiction clause was not unfair under sections 62 and 2(3) of the Consumer Rights Act 2015. The clause created no significant imbalance. Both sides would require English lawyers, and the contract had been signed with professional logistical assistance. The Act could not be used to override the jurisdictional scheme of the Brussels Recast Regulation.
5. Article 8(1). Weco established a good arguable case for jurisdiction over Mr Loro Piana and Credem. The claims against the defendants concerned the same casualty and raised common factual issues. Article 8(1) contains no separate foreseeability requirement; foreseeability forms part of the assessment of whether the claims are sufficiently closely connected. The proceedings were not abusive.
6. Himalaya clause. Weco and PMS were servants or agents within the clause, but the clause did not confer the benefit of the exclusive jurisdiction clause. Following The Makhutai [1996] AC 650, a Himalaya clause generally extends defensive exceptions and immunities, not a mutual jurisdiction agreement.
7. Conditional benefit and orders. PMS had a good arguable case that Mr Loro Piana had sued on the booking note in Italy and was therefore bound by its jurisdiction clause. The Milan proceedings against PML and PMS were to be stayed in favour of the English proceedings. PMS had no present entitlement to rely on the clause against Credem, because Credem had not commenced proceedings. Weco’s English jurisdiction was established under Article 8(1).