Hadi Kalo v Bankmed Sal

For the consumer jurisdiction gateway, a claimant must show a good arguable case that the contract is a consumer contract within the statutory regime. The court applies the ordinary three-limb good arguable case test pragmatically, without conducting a mini-trial. Relevant directed activity is assessed objectively and by an overall evaluation of the circumstances. It is sufficient that the trader’s activity objectively manifests a willingness to contract with consumers living in several states, including England and Wales; a specific intention to target the United Kingdom, or a direct causal link between the activity and the particular contract, is not essential.

The defendant, a Lebanese bank, applied for a declaration that the court had no jurisdiction over the claimant’s claim concerning an account held with a Lebanese branch. The account terms were governed by Lebanese law and contained an exclusive Lebanese jurisdiction agreement.

The claimant relied on sections 15B and 15E(1)(c)(ii) of the Civil Jurisdiction and Judgments Act 1982, arguing that he was domiciled in England and that the bank had directed commercial or professional activity to England and Wales. The central issue was whether there was a good arguable case that the account contract was a consumer contract within that gateway.

1. Jurisdiction challenge dismissed. The claimant established that he had the better of the argument that the bank had undertaken relevant directed activity to England and Wales. The court therefore had jurisdiction to determine the claim, subject to issues not decided concerning the effect of the exclusive Lebanese jurisdiction agreement if the statutory requirements ultimately failed.
2. The three-limb good arguable case test in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA required the claimant to show an evidential basis for the gateway, with the court assessing the relative merits contextually and flexibly. The court should proceed pragmatically and apply common sense, recognising that evidence may be incomplete and untested. Where the court cannot reliably form a decided view without effectively conducting a pre-trial or mini-trial, a plausible, although contested, evidential basis is sufficient.
3. The directed activity test required an overall assessment of the circumstances in which the consumer contract was concluded. The trader must have manifested an intention to establish commercial relations with consumers in other member states, including the consumer’s domicile. No substantial level of activity, direct causal link to the particular contract, or separate proof of subjective intention to target the United Kingdom was required where the objective effect of the activity was to manifest willingness to contract with consumers in several states including England and Wales.
4. The evidence capable of supporting that conclusion included the bank’s English-language website, applications for non-resident banking, advertising available on flights to London, evidence concerning an international retail division and expatriate customer targets, and evidence of approaches to UK-based customers. The competing credibility issues could not reliably be resolved at the jurisdiction stage without a mini-trial.