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

The Court of Appeal allowed the appellants' appeal against a High Court order dismissing jurisdiction in England and Wales. The court held that the judge erred in his analysis of the relationship between Article 5 and Article 13 of the 1968 Brussels Convention and in his evaluative findings on the existence and scope of contracts between the pensioners and the Gibraltar trustee, Castle. The claimants had a plausible evidential basis that (i) each pensioner was a consumer who entered into a contract with Castle for the supply of services, (ii) the conclusion of those contracts in the State of the consumers' domicile was preceded by specific invitations addressed to them, and (iii) the proceedings therefore fell within Article 13(3) of the Brussels Convention. The court emphasised the proper standard at the jurisdictional stage (a good arguable / plausible evidential basis) and remitted the substantive disputes to be litigated in this jurisdiction.

This was an appeal from HHJ Russen KC (sitting as a judge of the High Court, Circuit Commercial Court, Bristol) who upheld an application by Castle to challenge the English court's jurisdiction. The claimants are UK-domiciled investors who transferred UK pension rights into Gibraltar Qualifying Recognised Overseas Pension Schemes (QROPS) administered by Castle. The transfers were promoted principally by an unregulated intermediary, Montegue Smyth (MS), operating from England and Wales. The claimants alleged that, as victims of a pension-scam, they were induced into inappropriate offshore arrangements and brought a mixed suite of claims (tort, statutory restitution under the Financial Services and Markets Act 2000, and contractual and fiduciary claims) seeking, among other relief, reversal of transfers.

• Procedural posture: Proceedings began in September 2020; service occurred in March 2021; Castle applied under CPR Part 11 to contest jurisdiction; HHJ Russen (2021) found no jurisdiction under Article 13(3) and held Article 5 (and Article 2) applied. The claimants appealed.
• Issues before the Court of Appeal: (i) the correct relationship between Article 5 and Article 13 of the 1968 Brussels Convention, (ii) whether there was a contract for the supply of services between each pensioner and Castle and, if so, whether the contract was preceded by specific invitations addressed to the consumers in their domicile, and (iii) whether there was a sufficient connection between Castle and the intermediary MS to bring invitations within Article 13(3)(a).
• Key findings and reasoning: The Court of Appeal held Article 13 is a self-contained lex specialis and need not be reached through Article 5. The court applied the established preliminary evidential standard (a plausible evidential basis / good arguable case) and concluded that, on the material available, the appellants had the better of the argument that: they were consumers; they entered contracts with Castle (supported by application forms, terms and conditions, fee schedules, limitation of liability and obligations to exercise reasonable skill and care); the steps necessary to conclude the contracts took place in England and Wales; and specific invitations addressed to the pensioners occurred (facilitated by MS). The court also found there was a plausible evidential basis of a sufficient connection between Castle and MS (MS described as 'introducer' in Castle's welcome letter, evidence of MS procuring application forms and facilitating documentation and fees/commissions), such that Article 13(3)(a) could be satisfied. The Court therefore allowed the appeal and permitted the proceedings to continue in England and Wales, leaving all substantive issues to be litigated on the merits.

The court stressed that its decision determined jurisdiction only and did not resolve substantive liability or remedies. It also noted authorities considered on the proper interpretation of Article 13 and the standard of proof at the jurisdictional stage.

Appeal allowed. The Court of Appeal held that Article 13(3) of the 1968 Brussels Convention is a self-contained lex specialis that does not require antecedent characterisation under Article 5(1); the claimants had a plausible evidential basis that they entered into consumer contracts with Castle for the supply of services and that those contracts were preceded by specific invitations addressed to them in their domicile, with a sufficient connection between Castle and the introducer MS. Accordingly the English courts have jurisdiction to hear the proceedings. The court emphasised that this decision determines jurisdiction only and leaves substantive issues undecided.

Appeal from His Honour Judge Russen KC (sitting as a Judge of the High Court, Circuit Commercial Court (KBD), Bristol) whose judgment is reported as [2021] EWHC 2682 (Comm). This Court of Appeal decision is reported at [2022] EWCA Civ 1569. The dispute concerns whether proceedings may be pursued in England and Wales against a Gibraltar trustee under the 1968 Brussels Convention as applied between the United Kingdom and Gibraltar.