Sheikh Mohammed Omar Kassem Alesayi v Bank Audi SAL
[2024] EWHC 1975 (KB)
Hadi Kalo v Bankmed Sal
19 October 2023
[2023] EWHC 2606 (Comm)
High Court
A person from the UK sued a Lebanese bank in a UK court over a bank account in Lebanon. The court had to decide if the bank had done enough business in the UK to allow the case to be heard there. The judge looked at the bank's website, advertisements, and what people said about the bank's actions and decided that yes, the bank had done enough business in the UK for the court to hear the case.
Key Facts
- •Claimant (Mr. Kalo) sued Defendant (Bankmed SAL), a Lebanese bank, in the UK regarding a Lebanese account balance.
- •The account agreement specified Lebanese law and exclusive jurisdiction in Lebanese courts.
- •Mr. Kalo argued that the UK court had jurisdiction under s.15B of the Civil Jurisdiction and Judgments Act 1982 (1982 Act), as a consumer domiciled in England, due to a 'consumer contract' under s.15E(1)(c)(ii), reflecting Articles 15-17 of the Brussels I Recast Regulation.
- •The central dispute focused on whether the Bank's activities were 'directed' to England and Wales, satisfying the 'Directed Activity Test'.
- •The Bank's website included a 'Consumer' section with an 'Apply' button for account applications, and advertised in a magazine available on flights between Lebanon and London.
- •Evidence included witness testimonies (Mr. Kalo, his father, former Bank employees, other UK residents) about the Bank's marketing and outreach to non-resident customers.
- •The Bank countered with evidence emphasizing its lack of a UK strategy, small number of UK clients, and focus on Lebanese customers.
Legal Principles
Three-part test for determining jurisdiction gateways (Kaefer formulation): (i) evidential basis for claimant's better argument; (ii) pragmatic approach considering incomplete evidence; (iii) 'plausible evidential basis' if no decided conclusion.
Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA [2019] EWCA Civ 10, [73]-[80]
Directed Activity Test: Trader must manifest intention to establish commercial relations with consumers in other member states, including the consumer's domicile; no need for substantial activity; objective effect of activities suffices even without subjective intent.
Pammer v Reederei Karl Schluter GmbH & Co AG; Hotel Alpenhof GesmbH v Heller, C-585/08 and C-144/09 [2011] 2 All ER (Comm) 888; Emrek v Sabranovic, C-218/12 [2014] I.L.Pr. 571; Bitar v Banque Libano-Française SAL [2021] EWHC 2787 (QB)
Outcomes
The UK court has jurisdiction.
The judge found that Mr. Kalo presented a better argument that the Bank undertook Directed Activity towards the UK, based on the website, advertisements, witness testimonies, and despite challenges to the evidence's reliability.
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