Invitation to Treat in UK Law

What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.

If the question is whether a term was incorporated into a contract, the subsequent conduct of the parties may be very relevant to the inquiry whether such a term was or was not agreed. Mr Flaux's submissions to the contrary were, with respect, a misapplication of the principle that the subsequent conduct of the parties cannot be relied on as an aid to the construction of the contract, see Miller v. Whitworth Estates [1970] A.C. 583, 603D-E per Lord Reid, 615A per Lord Wilberforce.

This website was written in English and the available surgical procedures and accommodation options were priced in sterling; she explains that the website recommended that getting the surgery done in Poland would be much cheaper than in the UK. It advertised consultations in the UK at a number of UK addresses, followed by surgery in Poland provided by UK-trained, UK-registered surgeons with fluent English language skills, most prominent among them, the first defendant.

Did the claimant have a contract for the carrying out of the surgery and consequent care? Was that contract with the first defendant, or the second defendant or with both?

What law is to be applied to the claimant's claims in contract?

Given the applicable standards has the claimant made out her case?

I readily accept that contracts are not to be lightly implied. Having examined what the parties said and did, the court must be able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for. It must also, in most cases, be able to answer the question posed by Mustill LJ in The Kapetan Markos N.L. (NO.2) [1987] 2 Ll. 321 at 331: "What was the mechanism for offer and acceptance?"