Sheikh Mohammed Omar Kassem Alesayi v Bank Audi SAL

For consumer jurisdiction under the Civil Jurisdiction and Judgments Act 1982, a contractual variation creates a newly concluded contract only where it is sufficiently substantial to create a new legal relationship and replace the original contract. Mere updating, amendment, a material variation, or reliance on a newly inserted term is insufficient.

The question is governed by autonomous EU-law principles, not domestic rules on novation or contractual intention. The court determines the legal test finally, but the claimant need only establish a good arguable case on its factual application. A comprehensive replacement of banking terms may satisfy the test.

Sheikh Alesayi, a consumer banking customer, claimed that Bank Audi SAL was required to transfer more than US$24 million held in eight accounts. He relied on the consumer-jurisdiction provisions of the Civil Jurisdiction and Judgments Act 1982.

The bank contended that the banking contract had been concluded in 1994, when the account was opened and the statutory activity condition was not satisfied. Sheikh Alesayi relied on a suite of new contractual documents signed in November 2016. Mr Justice Constable held that the 2016 documentation amounted, at least on a good arguable case, to a new contract for jurisdictional purposes. The bank appealed. The central issue was what degree of contractual change is sufficient to mean that a new consumer contract has been concluded.

The appeal was dismissed unanimously. Lord Justice Popplewell gave the leading judgment, with Lord Justice Zacaroli and Lord Justice Peter Jackson agreeing.

1. The consumer-jurisdiction provisions contain two distinct elements. The court determines the meaning of the jurisdictional gateway as a question of law. The claimant then need only establish a good arguable case that the factual conditions are satisfied. An evaluative assessment of evidence will not be disturbed on appeal unless it falls outside the range reasonably open to the first-instance judge.
2. The meaning of a contract being concluded under sections 15B and 15E of the Civil Jurisdiction and Judgments Act 1982 is an autonomous EU-law question. The provisions were intended to retain, without expanding, the consumer-jurisdiction rules in Articles 17 to 20 of the Recast Regulation. English principles concerning novation, contractual intention, or the formal classification of a variation therefore do not govern the issue.
3. Following Hellenic Republic v Nikiforidis, a variation must be of such magnitude that it creates a new legal relationship rather than merely updating or amending the existing contract. The relevant assessment is one of substance, not form. Describing the result as akin to a novation is permissible only if the changes substantially replace the original legal relationship.
4. It is insufficient that the claim relies on a new term, or that the variation is material in some ordinary domestic-law sense. Such approaches would create uncertainty and could make jurisdiction depend on the particular term sued upon.
5. The 2016 documents constituted a single, comprehensive replacement agreement. They covered accounts previously governed by few or no express terms, introduced extensive new rights and liabilities, unified sub-accounts, extended the framework to new banking and investment products, and changed the regulatory treatment by classifying Sheikh Alesayi as a professional client. The Judge was entitled to find that the original contract had been replaced by a new contract concluded in 2016. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division): dismissed Bank Audi SAL’s appeal.
2. High Court of Justice, King’s Bench Division: Mr Justice Constable, in a judgment dated 30 April 2025 in claim KB-2023-001038, held that the 2016 contractual documentation gave rise to a new contract for the purposes of the statutory consumer-jurisdiction provisions.