Oak Leaf Conservatories Ltd v (1) Colin Weir (2) Christine Weir
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 24 October 2013 |
| Neutral Citation | [2013] EWHC 3197 (TCC) |
| Docket Number | Case No: HT-13-253 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 24 October 2013 |
[2013] EWHC 3197 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stuart-Smith
Case No: HT-13-253
Jonathan Selby (instructed by Harrowells LLP) for the Claimant
Ian Mitchell Q.C. (instructed by Sibley Germain LLP) for the Defendants
Hearing dates: 18 October 2013
The Claimant ['Oak Leaf'] designs, manufactures, supplies and installs high quality wood framed glazed structures. It carries out its business from premises in York. The Defendants ['the Weirs'] live in Ayrshire and are domiciled in Scotland. By these proceedings Oak Leaf alleges that the Weirs unlawfully repudiated contracts which had been concluded for the design, manufacture and installation of a greenhouse, a semi-circular garden room and a pool house for the Weirs' Ayrshire home.
By this application, which was issued on 4 September 2013, the Weirs apply for an order pursuant to CPR Part 11 declaring that the English court has no jurisdiction to try the claim or, alternatively, that it should not exercise any jurisdiction which it may have. They therefore apply to strike out the claim and do so on the basis that exclusive jurisdiction is vested in the courts of Scotland.
The primary issue raised and submission made by the Weirs is that the case falls within Rule 8(2) under Schedule 4 of the Civil Jurisdiction and Judgments Act 1982 so that exclusive jurisdiction is vested in the courts of Scotland. If that primary submission were to fail the Weirs would maintain their application on two further grounds. The first is that the claim must be brought in Scotland pursuant to Rule 3 because Scotland is the place of performance of "the obligation in question" within the meaning of that rule. The second additional argument raised by the Weir's is a straightforward forum non conveniens argument.
Having heard argument on the primary issue I ruled in favour of the Weirs, indicating that reasons would be given in writing later. It therefore becomes unnecessary to decide the two secondary issues, and I do not do so. This judgment sets out my reasons for finding in favour of the Weirs on the primary issue.
The Legal Framework
Section 16 (1) of the Civil Jurisdiction and Judgments Act 1982 ["the Act"] provides that schedule 4 of the Act shall have effect for determining, for each part of the United Kingdom, whether the courts of law of that part, or any particular court of law in that part, have or has jurisdiction.
Schedule 4 to the Act sets out the applicable rules for determining jurisdiction. Those rules include:
i) "Subject to the rules of this Schedule, persons domiciled in a part of the United Kingdom shall be sued in the courts of that part" (Rule 1);
ii) "Persons domiciled in a part of the United Kingdom may be sued in the courts of another part of the United Kingdom only by virtue of rules 3–13 of this Schedule." (Rule 2);
iii) "In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this rule and rules 8 and 9, …, if –
a)…; or
b)…; or
c) In all other cases, the contract had been concluded, with a person who pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled, or, by any means, directs such activities to that part or to other parts of the United Kingdom including that part and the contract falls within the scope of such activities." (Rule 7 (1));
iv) "Proceedings may be brought against a consumer by the other party to the contract only in the courts of the part of the United Kingdom in which the consumer is domiciled." (Rule 8(2)).
It is accepted that the construction of the structures for the Weirs fell within the scope of Oak Leaf's normal and commercial activities. Also it is not in dispute that the Weirs are consumers within the meaning of these rules. It is therefore common ground that rule 8(2) would apply so as to vest exclusive jurisdiction in the courts of Scotland if Oak Leaf "pursues commercial or professional activities in [Scotland] or, by any means, directs such activities to [Scotland] or to other parts of the United Kingdom including [Scotland]." The issue between the parties is whether those activities are pursued in Scotland or, by any means, directed to Scotland.
Both parties referred to Pammer v Reederei Karl Schlüter GmbH [2012] Bus LR 972 as setting out the applicable principles and guidance for the court. At [64] —[93] the ECJ considered the question whether it was necessary for a trader to intend to target one or more other member states and, if so, in what form such an intention must manifest itself.
The discussion by the ECJ establishes the following principles and guidance:
i) The trader must have manifested its intention to establish commercial relations with consumers from one or more other member states including that of the consumer's domicile. Specifically, in the case of a contract between a trader and a given consumer, it must be determined (by reference to the trader's websites and overall activity), whether before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers in other member states, including the member state of that consumer's domicile, in the sense that it was minded to conclude a contract with those consumers 1;
ii) While the dissemination of traditional forms of advertising in other member states, such as by the press, radio, television or other medium, may of itself demonstrate an intention of the trader to direct its activities towards those states, the mere establishment of a website which is accessible in other member states will not of itself do so since use of the internet may automatically give worldwide reach without any intention on the part of the trader to target consumers outside of the state in which it is...
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...consumer's habitual residence does not preclude a finding that its activities are directed there: Oak Leaf Conservatories Ltd v Weir [2013] EWHC 3197 (TCC), 78 Recitals (24) and (25) of Rome I provide as follows: “With more specific reference to consumer contracts, the conflict-of-law rule......
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Table of cases
...II.12.155, II.12.156, III.17.64 Oakley v airclear Environmental Ltd [2002] CILL 1824 II.6.84 Oak Leaf Conservatories Ltd v Weir [2013] EWhC 3197 (TCC) III.26.09 Oakrock Ltd v Travelodge hotels Ltd [2014] BLr 593 II.6.15, II.14.100 Oakrock Ltd v Travelodge hotels Ltd [2015] EWhC 30 (TCC) III......
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Litigation
...of whether within the UK the court of one jurisdiction or another should decide a case: see, eg, Oak Leaf Conservatories Ltd v Weir [2013] EWHC 3197 (TCC), where the TCC in London declined to exercise jurisdiction over a case on the basis that the proceedings ought to have been commenced in......