Ebury Partners Belgium SA/NV v Technical Touch BV
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 18 November 2022 |
| Neutral Citation | [2022] EWHC 2927 (Comm) |
| Docket Number | Case No: CL-2022-000402 |
| Court | King's Bench Division (Commercial Court) |
[2022] EWHC 2927 (Comm)
Mr Justice Jacobs
Case No: CL-2022-000402
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Anton Dudnikov (instructed by Reynolds Porter Chamberlain LLP) for the Claimant
Lisa Lacob (instructed by Crowell & Moring LLP) for the Defendants
Hearing date: Thursday 3 rd November 2022
Approved Judgment
This judgment was handed down remotely at 11.30am on Friday 18 th November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
A: Introduction
In e-commerce, it is now commonplace for a person to agree to another person's terms and conditions by ticking the appropriate box when completing an on-line application form. Equally commonplace, at least speaking personally, is for a person to fail to do so and then to receive a reminder that the box must be ticked in order for the transaction to proceed.
In the present case, the First Defendant (“TT”) was interested in receiving foreign exchange currency services from the Claimant company (“Ebury”). Its director, the Second Defendant (“Mr Berthels”), ticked the appropriate box on Ebury's application form for “Currency Services” on 15 January 2021. The application form was in Dutch, and the relevant ticked box was against the following text (in translation):
“I agree to the Ebury Terms and Conditions.”
Just above the ticked box was text which enabled an applicant to download those terms and conditions, with the text:
“Download Terms and Conditions”
Just below the ticked box was a link to a webpage containing a pdf of those terms and conditions.
If Mr Berthels, on behalf of TT, had used either of the links so provided, he would have seen the detailed terms and conditions which Ebury wished to apply to its business dealings with those who completed the application form. These were headed “Relationship Agreement – Corporate Customers (v.5.0 09/2020)”. Version 5.0 09/2020 was also the reference in the link below the ticked box. TT's evidence is, however, that Mr Berthels did not use either of the links, and therefore did not (at least at that time) look at or consider any of the detailed terms to which, by ticking the relevant box, he was indicating TT's assent. Had he looked, he would have seen terms which occupied some 15 pages and 27 clauses. Clause 27 listed a number of terms under the heading: “Other important terms”. They included governing law and exclusive jurisdiction clauses in the following terms:
“[27.11] This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation, interpretation, performance and/or termination (including non-contractual disputes or claims) shall be exclusively governed by and construed in accordance with the laws of England and Wales.
[27.12] Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation, interpretation, performance and/or termination (including non-contractual disputes or claims). For such purposes each party irrevocably submits to the jurisdiction of the English courts and waives any objection to the exercise of such jurisdiction. Each party also irrevocably waives any objection to the recognition or enforcement in the courts of any other country of a judgment delivered by an English court exercising jurisdiction pursuant to this Clause 27.12.”
On the basis of the above facts, there would appear (at least at first sight) to be no real scope under English law for TT to argue that it was not bound by Ebury's terms and conditions, including the jurisdiction clause, to which it had assented when it ticked the relevant box.
Under English law, as explained in Chitty on Contracts 34th edition, paragraph 15-007, where a contract has not been signed, a party can nevertheless be bound by terms contained or referred to in a notice or similar document, including a standard form document. Frequently the document is simply made available to a party before or at the time of making the contract, and the question will then arise whether the printed conditions which it contains, or to which it refers, have become terms of the contract. A party can be bound even if it does not take the trouble to read the terms. Whether or not the terms are binding will depend upon the form of the document which gives notice of the terms, the time at which it is brought to the attention of the receiving party, and whether reasonable steps have been taken to draw the terms to the attention of that party.
Paragraph 15-010 of Chitty discusses the concept of notice in greater detail. There was no dispute that this was an accurate statement of English law:
“ Meaning of notice It is not necessary that the conditions contained in the standard form document should have been read by the person receiving it, or that they should have been made subjectively aware of their import or effect. The rules which have been laid down by the courts regarding notice in such circumstances are three in number:
(1) if the person receiving the document did not know that there was writing or printing on it, they are not bound (although the likelihood that a person will not know of the existence of writing or printing on the document is now probably very low);
(2) if they knew that the writing or printing contained or referred to conditions, they are bound;
(3) if the party tendering the document did what was reasonably sufficient to give the other party notice of the conditions, and if the other party knew that there was writing or printing on the document, but did not know it contained conditions, then the conditions will become the terms of the contract between them.”
Applying these principles, there would appear to be no doubt that, applying principles of English law, Ebury did what was reasonably sufficient to give TT notice of its standard conditions. Indeed, by ticking the box TT positively indicated its agreement to those terms and conditions. English courts have held in the past that sufficient notice of terms and conditions has been provided, even without a box being ticked, when a party has been given a document which refers to terms found on the other party's website. As Teare J said in Impala Warehousing and Logistics (Shanghai) Co Ltd v Wanxiang Resources (Singapore Ltd) [2015] EWHC 25 (Comm) para [16]:
“In this day and age when standard terms are frequently to be found on web-sites I consider that reference to the web-site is a sufficient incorporation of the warehousing terms to be found on the website”.
Teare J expressed a similar sentiment in Cockett Marine Oil DMCC v ING Bank NV [2019] EWHC 1533 (Comm) para [23], where he referred to a party's ability to access terms by clicking a hyperlink.
Furthermore, the box that was ticked was – objectively construed – an agreement to all of the relevant terms and conditions. There is nothing to suggest that any of the terms were somehow excluded from the notice being given by Ebury, or the assent which was being given by TT.
It is against this background that Ebury, the claimant in the present proceedings, applies for an interim anti-suit injunction (or “ASI”) in respect of Belgian proceedings which have brought by the Defendants. Ebury contends that the Belgian proceedings are in breach of exclusive jurisdiction agreements in favour of the English court. Those jurisdiction agreements are, on Ebury's case, contained in two agreements concluded in early 2021.
The first agreement relied upon is the Relationship Agreement (or “RA”) between Ebury and TT described in outline above. The second agreement is a personal guarantee and indemnity (“the Guarantee”) given by Mr Berthels in respect of TT's obligations to Ebury. That agreement was signed by Mr Berthels, and therefore there can be no argument, at least under English law, that its terms are not binding upon him. The Guarantee contained English governing law and jurisdiction agreements in the following terms:
“[15] This guarantee and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of England and Wales. If any provision hereof or part thereof shall be held invalid or unenforceable no other provisions hereof shall be affected and all such other provisions shall remain in full force and effect.
[16] Each party irrevocably agrees that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with this guarantee or its subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of Ebury to take proceedings against the Guarantor in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.”
A dispute arose in April 2021, when TT failed to pay a margin call made by Ebury under the terms of the RA, and also failed to pay further sums that subsequently (on Ebury's case) became due after Ebury closed out the trades placed by TT. As soon as it became clear that the parties would not achieve an amicable settlement, the Defendants...
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