Winslet & Ors v Gisel, The Estate of

For jurisdiction under Article 7(1)(a) of the Recast Brussels Regulation, a claimant must show a good arguable case that the courts of the proposed forum are the courts for the place of performance of the obligation in question. A private, interest-free loan made by a person or company outside the lending business is not ordinarily a contract for the provision of services under Article 7(1)(b). In a claim for repayment, the obligation in question is the borrower’s obligation to repay. The governing law determines the place of performance. For an unprovided-for repayment obligation under English law, repayment is due at the creditor’s residence or place of business.

The claimants sought repayment of loans allegedly made to the late Andreas Gisel between 2010 and 2018. The defendant estate was connected with France, while the first claimant and claimant companies were based in England. Bert Bolkenstein, acting as a proposed representative of the estate, challenged the English court’s jurisdiction and sought to set aside the claim form or its service.

The central issue was whether the English courts had special contractual jurisdiction under Article 7(1) of the Recast Brussels Regulation. The court considered whether the loans were contracts for the provision of services and, if not, where the repayment obligation was to be performed.

1. Application dismissed. The claimants had shown a good arguable case that the English courts had jurisdiction under Article 7(1)(a) of the Recast Brussels Regulation.
2. The good arguable case test required the court, having regard to the summary and interlocutory nature of the jurisdiction hearing, to be satisfied on the available material that the jurisdictional argument was clearly better than the opposing argument.
3. The loans were not contracts for the provision of services under Article 7(1)(b). Although a commercial loan by a financial institution will ordinarily involve services, the simple provision of money to a friend outside a lending business was not the relevant kind of activity. The absence of stipulated remuneration and the interest-free, open-ended nature of the loans supported that conclusion. The example of pro bono professional services in Corman-Collins SA v La Maison du Whisky SA [2014] QB 431 concerned a materially different situation.
4. Under Article 7(1)(a), the obligation in question was the contractual obligation forming the basis of the proceedings. Since the claim was for a debt, it was the obligation to repay the money lent.
5. The place of performance was determined under the governing law of the loans. Applying Article 4(2) of Rome I, the lender rendered the characteristic performance. The loans were bilateral contracts involving the advance of money in return for a promise to repay, rather than unilateral contracts. The court approved and adopted the analysis in Atlantic Telecom GmbH, Noter [2004] SLT 1031, while recognising that the relevant passage there was obiter.
6. The loans were governed by English law because the lenders’ habitual residences or registered offices were in England. Under the English-law rule applicable where no place of repayment was specified, repayment was due at the creditor’s residence or place of business. That place was England.