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.