Suhail Al-Bitar & Anor v Byblos Bank SAL

For the consumer-jurisdiction provisions of the Civil Jurisdiction and Judgments Act 1982, consumer status depends on the purpose of the contract viewed as a whole. A banking account does not become a consumer account merely because business receipts are retained for later personal use, or because business expenses are paid from another account. Where the account is an essential part of the claimant’s business, the business purpose is not negligible. The court must also assess the claimant’s factual explanation pragmatically on the evidence available for a jurisdiction challenge.

The first claimant, resident and domiciled in England and Wales, sought an order requiring a Lebanese bank with no presence in England and Wales to transfer the balance of a sterling current account to a London account. The banking contract was governed by Lebanese law and contained an exclusive jurisdiction clause in favour of the Lebanese courts. The claimant relied on sections 15B and 15E of the Civil Jurisdiction and Judgments Act 1982, contending that the contract was a consumer contract.

The defendant challenged jurisdiction under CPR Part 11. A similar application concerning the second claimant was withdrawn. The issue was whether the first claimant concluded the banking contract for a purpose outside his trade or profession. The court considered the account-opening documents, the recorded reasons for receipts, and the claimant’s explanations for transfers and cash deposits.

1. Application granted. The defendant’s CPR Part 11 jurisdiction challenge succeeded. The parties were invited to submit a draft order reflecting the relief sought in the application notice.
2. On a jurisdiction challenge, the claimant must show an evidential basis for having the better argument on the jurisdictional gateway. The court must approach incomplete evidence pragmatically and with common sense. The claimant’s credibility was material because his factual explanation was relied on to show that the account was used for private rather than business purposes. The approach was drawn from Goldman Sachs International v Novo Banco SA [2018] 1 WLR 3683 and Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA [2019] EWCA Civ 10.
3. The consumer-jurisdiction provisions of the Civil Jurisdiction and Judgments Act 1982 restated and retained the relevant Brussels Recast protections and did not extend their scope. Consumer status therefore had to be assessed by reference to the purpose of the particular banking contract.
4. The banking relationship had to be analysed as a consistent whole. The account-opening form identified a guesthouse as the claimant’s work address, and the recorded reasons for receipts were consistent with his property business. The absence of withdrawals and the payment of business expenses from another account did not alter the essential purpose of receiving business payments.
5. The court rejected a two-stage analysis separating the account’s opening from its later use. That was inconsistent with Benincasa v Dentalkit Srl [1997] I.L.Pr 559, which treated planned future professional activity as retaining its professional character.
6. Even if the account had a dual purpose, the business purpose was not negligible. The claimant had given clients or customers the account details for payment for services provided by his business. That was an essential business function, notwithstanding that the balance might later be used personally. The court did not need to resolve whether the reasoning in Gruber v Bay Wa AG [2006] 2 WLR 205 applied to the predominantly professional-use test in Schrems v Facebook Ireland Ltd [2018] 1 WLR 4343.