Joy Irene Dooley & Ors v Castle Trust & Management Services Limited

The consumer-contract jurisdiction gateway is a self-standing exception to the defendant’s domicile rule. A claimant need not first establish jurisdiction under the ordinary contractual gateway. At the preliminary stage, the claimant must show the better of the argument. Where disputed facts cannot reliably be resolved, a plausible evidential basis may suffice. A trustee-beneficiary relationship may coexist with a service contract. The contract may extend beyond the mechanical execution of a deed. Specific invitations may plausibly be made through an intermediary where there is sufficient evidence of a connection with the trader. Personal contractual claims and statutory claims depending on an agreement may be proceedings concerning that contract.

Individual pension investors appealed against a decision declining jurisdiction over their claims against a Gibraltar professional trustee company. The claims arose from pension transfers into offshore schemes promoted by an intermediary. The High Court, in [2021] EWHC 2682 (Comm), held that the investors lacked a good arguable case under Article 13(3) of the Brussels Convention and that jurisdiction instead arose under Article 2 or Article 5(6).

The appeal concerned whether the application forms and standard terms created consumer contracts for services, whether specific invitations in England and Wales were sufficiently connected to the respondent, and whether the claims were proceedings concerning those contracts.

1. Disposition. The appeal was allowed unanimously. The proceedings could proceed in this jurisdiction. The decision did not determine the substantive merits.
2. Preliminary jurisdictional test. The burden lay on the pensioners to show the better of the argument on the material available at this preliminary stage. This was not the ordinary balance-of-probabilities test. If disputed facts could reliably be assessed, the court should take a view. If they could not, a plausible, albeit contested, evidential basis could establish the gateway. The test was flexible and required judicial common sense and pragmatism. The approach was supported by Brownlie, Ang, ING Bank and Flowers.
3. Consumer jurisdiction. Article 13 was a self-standing lex specialis to the general domicile rule in Article 2. It was unnecessary first to establish jurisdiction under Article 5(1). The High Court had misread Gabriel and Engler by treating Article 5(1) as a gateway to Article 13. Article 13 was to be interpreted strictly, but not technically or literally where that would undermine consumer protection. Article 13(3) required a private final consumer, a contract with a professional vendor for goods or services creating reciprocal and interdependent obligations, and the conditions in paragraphs (a) and (b).
4. Application to the evidence. The application forms, agreed fees and standard terms provided a good arguable basis for contracts for services. The contractual relationship could coexist with the trustee-beneficiary relationship. The services plausibly extended beyond the mechanical execution of deeds, having regard to the fees, administration, reasonable-skill-and-care obligation and regulated pension-transfer context. There was also a plausible evidential basis for specific invitations through the intermediary, including the provision of Castle’s forms and facilitation of the required documentation.
5. Claims. The personal claims were proceedings concerning the service contracts, particularly because contractual breaches and contractual damages were pleaded. The section 27 claims also had the necessary contractual connection because they depended on an agreement and sought reversal of the transfers. It was unnecessary to resolve finally whether the joint-tortfeasorship claims fell within the gateway, since jurisdiction over one category was sufficient and Castle accepted that the claims should be heard together.

1. Court of Appeal (Civil Division). Appeal allowed from the High Court decision.
2. High Court of Justice, Business and Property Courts in Bristol, Circuit Commercial Court. In [2021] EWHC 2682 (Comm), the court acceded to Castle’s jurisdiction challenge under Part 11 and held that the pensioners had no good arguable case under Article 13(3); jurisdiction instead arose under Article 2 or Article 5(6).