TATLA Newsletter – May 2020

In recent years there has been a substantial body of case law – both at European and domestic level – on the proper scope of Chapter II, Section 4 of recast Brussels I (No 1215/2012): the consumer contracts ground of jurisdiction. The trend, discernible at a European level in cases like Emrek Case C-218/12, has been towards qualified expansion (qualified because the protection of the jurisdictional rights of the weaker party and the need to avoid parallel proceedings in more than one EU Member State have been used to justify the width given to Section 4).

In the English Courts, enterprising Claimant lawyers have long made use of the consumer contracts ground to avoid the limitations found elsewhere in the Regulation and, in cases where insurance indemnity is lacking, this ground of jurisdiction has proved a more reliable basis on which to bring the tortfeasor before the English Court than section 3 of the recast Regulation: see, Lackey [2019] EWHC 1028 (QB); Cole & Martin v IVI [2019] WLUK 373 (QB); and, Hutchinson [2020] EWHC 178 (QB).

The jurisprudence in this field has very recently been supplemented by important decisions at a domestic and European level. Ang v ReliantCo Investments Ltd [2019] EWHC 879 (Comm) was swiftly followed by AU v ReliantCo Investments Ltd Case C-500/18. AU, decided on 2 April 2020, builds on previous decisions like Ilsinger Case C-180/06 in considering the degree of linkage or association with the contract which is required before section 4 of recast Brussels I can be deployed. In this case, referred by a Romanian Court, the Court of Justice asked itself what it means to be a “consumer” in this context and also, “whether Regulation No 1215/2012 must be interpreted as meaning that, for the purposes of determining the courts having jurisdiction, an action in tort brought by a consumer against the other contracting party comes under Chapter II, Section 4, of that regulation.” The Court’s answer to this question may be surprising to those used to a more literal approach to the construction of legislation.

It is hoped that the following Case Note will provide a useful guide to this new contribution by the Luxembourg Court (together with a pointer towards some background reading for those who are interested).

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