Ebury Partners Belgium NV/SA v Grossiste Francochine SARL
[2023] EWHC 3396 (Comm)
MF Tel Sarl v Visa Europe Ltd
5 June 2023
[2023] EWHC 1336 (Ch)
High Court
A French company says Visa didn't charge them some fees, causing them to lose money. They sued, and Visa tried to get the case thrown out. The judge said it's too complicated to decide now; they need a full trial to figure out who's right and which country's laws apply.
Key Facts
- •MF TEL SARL (Claimant), a French company, operated a prepaid card program using Visa Europe Limited's (Defendant) services through a UK-based sponsor bank, RRS.
- •The Claimant alleges the Defendant failed to apply 'Optional Issuer Fees' (OIFs) to certain transactions, resulting in financial loss.
- •The initial claim was based on French law, but was amended to include an alternative English law claim.
- •The Defendant applied to strike out the French law claim under CPR 3.4(2)(a) or for summary judgment under CPR 24.2.
- •The dispute centers on the application of Rome II Regulation (Article 4(1)) to determine the applicable law and where the 'damage' occurred.
- •Previous proceedings in France ruled against the Claimant, determining that the 'causal event' occurred in London.
Legal Principles
CPR rule 3.4(2)(a) allows striking out a statement of case disclosing no reasonable grounds for bringing a claim.
CPR rule 3.4(2)(a)
CPR rule 24.2 allows summary judgment if a claim has no real prospect of success.
CPR rule 24.2
Rome II Regulation, Article 4(1): The law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs.
Rome II Regulation, Article 4(1)
In negligent misstatement cases, damage occurs where the misstatement is received and relied upon.
London Helicopters v Heliportugal [2006] EWHC 108 (QB)
Determining the place where damage occurred requires a finely balanced judgment, especially in economic loss cases.
Griffin Underwriting Ltd v Varouxakis [2018] EWHC 3259 (Comm), Kwok v UBS London [2023] EWCA Civ 222
Outcomes
Defendant's application to strike out the French law claim or grant summary judgment was dismissed.
The court found the Claimant's case that French law applies had a real prospect of success. Determining the location of the damage under Rome II is fact-dependent and requires a finely balanced judgment, best made at trial. The court also noted inconsistencies between the Defendant's evidence and the Claimant's pleaded case.