The Reward Collection Ltd v Whaleco Technology Ltd t/a Temu

For service out under Civil Procedure Rules 1998, rule 6.33(2B), the claimant must show a sufficiently strong case that the relevant contractual jurisdiction gateway is actually satisfied. It is insufficient to show only an arguable contract which might contain such a term.

The court applies the flexible three-limb “good arguable case” approach. It must assess the available material pragmatically without conducting a mini-trial. Online conduct, including completing contractual terms and submitting an electronic form, may provide plausible evidence of contractual intention. A later agreement does not necessarily discharge an earlier agreement where it does not cover all anticipated dealings.

The Claimant, a marketing services company, sued the Defendant, which operated the Temu platform, for unpaid commissions said to arise under a contract formed through an online JotForm process. It also advanced an alternative quantum meruit claim.

The Claimant served the proceedings in Ireland without permission, relying on contractual jurisdiction gateways under rule 6.33(2B). The Defendant challenged jurisdiction, arguing that no contract had been concluded on the alleged terms, that the applicable JotForm version could not be identified, that a later Impact Agreement superseded any earlier agreement, and that the quantum meruit claim did not fall within the gateways.

The central issues were whether the Claimant had a good arguable case on contractual formation and incorporation of a qualifying jurisdiction clause, and whether the alternative claim could proceed without, or obtain retrospectively, permission for service out.

1. Good arguable case. The court applied the approach in Brownlie v Four Seasons Hildings Inc [2017] UKSC 80, Goldman Sachs International v Novo Banco SA [2018] UKSC 34, Kaefer Aislamientos v AMS Drilling Mexico [2019] EWCA Civ 10 and Pantheon International Advisors v Co-Diagnostics [2023] EWHC 1984 (KB). The court must assess the evidence pragmatically and avoid a mini-trial. Where no reliable conclusion can yet be reached, a plausible evidential basis may suffice.
2. The Claimant had the better argument that completing the JotForm, scrolling through plainly contractual terms, entering a mark in the signature field and pressing “submit” was capable of objectively expressing an intention to contract. The contrary evidence concerning the parties’ disagreement over CLOs and qualifying links did not defeat that conclusion at the interlocutory stage.
3. The Claimant also had a sufficiently plausible case that the relevant terms were those in the EW JotForm, despite inconsistencies in the versions produced. If established, those terms contained a qualifying jurisdiction clause under rule 6.33(2B).
4. The later Impact Agreement was arguably not a complete substitute for the earlier agreement. Its terms appeared not to cover all anticipated dealings and might instead vary the earlier agreement only to the extent of inconsistency.
5. The contractual claims could therefore be served out without permission under rule 6.33(2B). The amended gateway could potentially cover some quantum meruit claims, but its application depended on how the claim was pleaded. Since the quantum meruit claim was closely connected with the contractual claims, retrospective permission to serve out was granted under rule 6.36.
6. The court declined to decide, as obiter, whether the jurisdiction gateway would be satisfied if the claim were arguable only as a quantum meruit.