When cross border practitioners can get around Brexit (and when they can’t): Cooper v Freedom Travel Group and Bank of Scotland (Halifax) [2022] EWCA Civ 1557

Articles, News

07/12/2022

On 31st December 2020, the UK-EU transition period ended. This meant that the recast Brussels Convention ceased to apply. The English courts now apply the jurisdictional rules under CPR 6.36 to such cross-border claims, with the result that a would-be claimant must show that (s)he can pass through a jurisdictional gateway before the court will hear the claim. Further, such claims are vulnerable to being stayed on the basis that England and Wales is not the appropriate forum.

Consumer contracts

However, s.15B of the Civil Jurisdiction & Judgments Act 1982 (“the 1982 Act’) presents a saving grace. Where a consumer is domiciled in the UK and the subject-matter is a matter relating to a consumer contract, then the consumer can bring a claim “in the courts for the place where the consumer is domiciled” (S. 15B(2)(b), 1982 Act). This cause of action is not unfettered. Indeed, s.15E of the 1982 Act requires that:

  • The party to the contract other than the consumer must “pursue commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled” (s.15E(c)(i), 1982 Act), and
  • A consumer contract ‘does not include a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation or a contract of insurance’.

Where, therefore, the consumer has contracted directly with a supplier of goods and services located abroad, (s)he may sue that supplier in the courts of England and Wales if things go wrong. The right to do so is absolute and there is no need to show a threshold jurisdictional gateway or to prove that England and Wales is the most appropriate forum within which to bring the claim. If the requirements of s.15B are satisfied, the Defendant is unable to challenge jurisdiction.

This provision is clearly extremely useful where a consumer wishes to bring a claim against a supplier based abroad. But it has its limitations; the 1982 Act does not assist a consumer in obtaining recognition or enforcement of any English judgment in the courts of the supplier’s domicile. It is therefore of paramount importance for practitioners to ensure that any resulting judgment will be enforceable against the supplier before embarking on any such claim.

Goods and services paid for by credit card

In the case of goods and services paid for by credit card there is a neat workaround. s.75 of the Consumer Credit Act 1974 (“the 1974 Act”) provides a cause of action against credit card providers for consumers who have suffered a breach of contract by suppliers, wherever those suppliers happen to be resident (cf Office of Fair Trading v Lloyds TSB Bank PLC [2007] UKHL 48, in which it was confirmed that s.75 is not limited to domestic transactions). Importantly, there is no requirement that the consumer pursues the supplier first before issuing a claim against a credit card provider. The practical effect of this is that in cases founded on a breach of a consumer contract, the consumer can issue a claim against the credit card provider and bring their claim in the English courts, wherever the accident giving rise to the claim occurred. The consumer will then, if successful on the facts, have an English judgment enforceable against a regulated English entity.

Where a consumer has used a credit card in entering into a contact with a foreign or insolvent supplier, then, s.75 provides a useful tool; but it too has its limitations. The recent judgment of Cooper v Freedom Travel Group and Bank of Scotland (Halifax) [2022] EWCA Civ 1557 highlights the continuing advantages to consumers of purchasing goods and services from companies based within this jurisdiction, if possible using credit to do so.

Cooper v Freedom Travel: the facts

The facts will be familiar to all practitioners working this area.

In 2014, the Claimant’s husband (Mr Cooper) bought a package holiday to Greece to take place in May 2015 with Freedom Travel Group Ltd. He bought the holiday using a Halifax Mastercard. Whilst on holiday, his wife fell and suffered a fracture to her leg. Upon her return to the UK, she issued a claim against Freedom Travel Group Ltd under the Package Travel Regulations 1992 (“the 1992 Regulations”).

On 2nd February 2018, the Claimant accepted an offer to settle the claim on a 70:30 apportionment in her favour. A quantum-only trial was due to take place in November 2019. However, in September 2019, Thomas Cook Ltd entered into liquidation. Freedom Travel Group Ltd, being a wholly owned subsidiary of Thomas Cook, also entered into liquidation. Unfortunately, the terms of Freedom Travel’s insurance were such that no claim by the Claimant against insurers was possible.

In the light of this set of circumstances the Claimant applied to add Halifax to the proceedings under CPR 19.5. She relied on s.75 of the 1974 Act. Her application was dismissed by the Deputy District Judge and then by HHJ Simpkiss on two grounds. Namely:

  1. The Claimant was not a “debtor” within the meaning of the 1974 Act.
  2. The primary limitation period under s.11 of the Limitation Act 1980 would not be disapplied as the respondent was prejudiced by the admission of liability of the original defendant.

Permission to appeal was granted on the primary ground of appeal, namely that the judge was wrong in law to find that the appellant had no claim under s.75 of the 1974 Act. In the event that she succeeded upon the first ground, permission was also granted to argue ground 2 of the original grounds of the appeal. The Claimant’s arguments consisted of the following:

  • The term ‘debtor’ in s.189 of the 1974 Act included third-party beneficiaries to the underlying consumer credit agreement.
  • Further, a claim by such a third party under the 1992 Regulations was a contractual claim. This transformed her into a party to the original contract.
  • Any such alternative interpretation to the above would produce a result which conflicted with the purpose of the underlying Package Travel Directive.

Cooper v Freedom Travel: the judgment

The Court of Appeal dismissed ground 1 of the appeal. Accordingly, ground 2 did not fall for determination. Lady Justice Nicola Davies gave the leading judgment.

Meaning of Debtor: s.189 of the 1974 Act defined ‘debtor’ as ‘the individual receiving credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement includes the prospective debtor’.

This confined the meaning of ‘debtor’ to an individual who was a party to a consumer credit agreement. The receipt of ‘credit’ was not simply having the benefit of funds; it was having the contractual right to defer repayment of the debt. They could not have such a contractual right if they were not party to the agreement.

At no point had the Claimant been a party to the agreement. The credit had been extended solely to her husband. Further, the 1974 Act made provisions for consumer protection which were supported by enforcement measures. If the definition of ‘debtor’ were to be expanded beyond the ‘contractual debtor’, then practical and legal difficulties would arise in respect of those enforcement measures. There was nothing in the Act to include third party beneficiaries, nor did it seek to override privity of contract.

1992 Regulations: The Claimant’s claim was not one of breach of contract, but a statutory claim under the 1992 Regulations by a non-contracting party. Regulation 15 imposed statutory liability on the organiser of a package holiday contract in favour of a consumer. The Claimant was not the principal contractor but an ‘other beneficiary’ within the meaning of Regulation 2(2). It provided her with a statutory cause of action, but she was not a party to the original contract.

Alleged conflict with the directive: There was no such conflict. The Directive provided a targeted scheme to protect package holiday makers; the 1974 Act aimed to regulate consumer credit and hire. They were separate legislative instruments designed to address different policy objectives. The court’s interpretation of s.75(1) of the 1974 Act was not contrary to the aims of the Directive.

Commentary

It is now established that third-party beneficiaries cannot issue a claim founded on a separate consumer credit agreement. However, it may be arguable (depending on the facts of the case) that the term ‘debtor’ could extend to additional card-holders. These are individuals who are authorised by the principal cardholder to use the credit card account. Indeed, in the ombudsman decision of S v Tesco PLC, the Financial Ombudsman Service upheld a claim made by an additional card-holder where the person purchased goods using their card for the benefit also of the principal card-holder.

Further, it is important to recognise that where s.75 applies, it does not matter if the transaction was only partly financed by credit. This is because s.189 of the 1974 Act defines finance to mean ‘wholly or partly’. Accordingly, when a deposit is paid by way of credit, the consumer can still utilise the benefits of s.75. 

Conclusion

While Mrs Cooper’s claim may have been dismissed in the Court of Appeal, it is hoped that this judgment sheds light on the operation of s.75, and its role in allowing the courts of England and Wales to accept jurisdiction for accidents abroad.  Where a consumer wishes to bring a claim against a foreign or insolvent supplier, it is always worth considering whether to make a like claim against any relevant creditor, if only to make recognition and enforcement more straightforward.

Featured Counsel

Anirudh Mandagere

Call 2019

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