Chelsea Roach v Vallarta Adventure, S.A de C.V

For the consumer-contract jurisdiction gateway, mere accessibility of a trader’s website, or a small number of customers from the consumer’s country, is insufficient. The court must assess whether the trader’s activities created a sufficient connection with that country, considering the trader’s conduct and marketing activity in the round.

On forum non conveniens, the defendant must show an available alternative forum that is clearly or distinctly more appropriate. If it does so, the claimant must demonstrate strong or special reasons why justice nevertheless requires an English trial. A valid exclusive jurisdiction clause is an important factor, but the court must evaluate all the circumstances holistically.

The claimant suffered catastrophic injury during an all-terrain vehicle excursion in Mexico. She brought a personal injury claim in England against the Mexican tour operator and sought to rely on the consumer-contract gateway to serve proceedings out of the jurisdiction. Alternatively, she resisted the defendant’s application to set aside permission previously granted under the tort gateway.

The court considered whether the parties’ agreement was a consumer contract under sections 15A to 15E of the Civil Jurisdiction and Judgments Act 1982, whether the defendant directed commercial activities to the United Kingdom, whether the Mexican jurisdiction clause was likely to be valid, and whether Mexico was the more appropriate forum.

1. The consumer-contract application and consequential applications to amend the claim were dismissed. The claimant was a consumer domiciled in the United Kingdom, and the claim fell within the relevant civil and commercial subject matter. The decisive question was whether the defendant directed commercial activities to the United Kingdom.
2. Applying Pammer v Reederei Karl Schluter GmbH, the court held that website accessibility alone does not amount to directing activities. Intention to target the consumer’s country is relevant but not essential. The court must assess the net effect of the trader’s conduct and determine whether there is a sufficient connection. The defendant’s focus was Mexico and North America, particularly the United States. English-language material, dollar pricing, international contacts, tourism imagery, United Kingdom customers and a BBC reference did not establish sufficient United Kingdom targeting.
3. The tort gateway was conceded. Applying The Spiliada, the defendant had to establish an available alternative forum that was clearly or distinctly more appropriate. The evidence was sufficient for the court to take a view on the disputed Mexican-law jurisdiction clause rather than resorting to the more flexible third limb of the test.
4. The clause was likely to be valid under Mexican law. The Mexican authorities indicated that a consumer adhesion contract required a contextual assessment of access to justice, bargaining disparity, representation, costs and the parties’ ability to defend their rights. They did not establish that every such jurisdiction clause was invalid.
5. Mexico was the natural and appropriate forum. The tort, governing law, defendant, principal liability witnesses and much contemporaneous evidence were located there. The claimant’s United Kingdom domicile, quantum evidence and practical disadvantages did not constitute strong reasons to displace the clause or outweigh the Mexican factors. The English proceedings were stayed.

First-instance decision. No prior appellate decision is stated in the judgment.