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13 August 2013
In Harkin v Towpik & Others(1) the Irish High Court considered an application brought by the defendants, among other things, to set aside the service of the summons on them on the grounds that the court had no jurisdiction to hear and determine the plaintiff's claim, as claimed under the EU Brussels I Regulation (44/2001).
In 2009 the plaintiff wished to have a breast reduction and searched online for the procedure. In doing so she came across the UK-based website of the third named defendant, which advertised the availability of cosmetic medical procedures in Poland. The plaintiff made her own arrangements to fly to Warsaw in July 2009, where she attended the clinic of the second named defendant and met the first named defendant, who explained the risks and likely outcomes. She duly paid for the procedure and the following day, having signed a consent form following an additional examination, she had the operation. She had two further checks with the first named defendant before returning to Ireland.
Twenty one months later the plaintiff contacted the third named defendant in the United Kingdom to raise a concern about the outcome of the procedure, referencing specifically the post-operation position of her nipples. In early July 2011 a letter before action was written to the defendants, calling on them to admit liability. Shortly thereafter, a personal injuries summons was issued just before the expiration of the two-year limitation period under Irish law from the date of the procedure. The summons claimed "damages for personal injury arising out of negligence and breach of duty". The plaintiff made no averment about any consideration of claiming in Poland, other than the statement at the end of the summons that no proceedings had been commenced in any other jurisdiction. In late July 2011 the defendants' solicitors indicated that the jurisdiction of the Irish courts would be challenged, conditional appearances were entered to that end and further particulars of the claim were sought. Ultimately, the motion came before the president of the High Court for determination.
The court observed that the Brussels I Regulation outlines the general provisions governing jurisdiction within the European Union. The general rule from Article 2(1) is that jurisdiction lies with the courts of the member state of the defendant's domicile. However, Article 3 further provides that a defendant may be sued in the courts of another member state if specific exceptions apply. Articles 5 to 7 of Section 2(2) of the regulation confer special jurisdiction on a plaintiff to bring an action in another member state.
The High Court noted that Article 5(3) permits a plaintiff to bring proceedings in matters relating to tort in the courts for the place where the harmful event occurred or may occur. For contractual claims, it observed that Article 5(1) prescribes that proceedings may be commenced in the courts of the place of performance of the obligation in question, which in the case of the provision of services is the place in a member state where, under the contract, the services were provided or should have been provided. It further noted that, notwithstanding these rules of special jurisdiction, the regulation also affords "protective" jurisdiction in respect of certain parties identified as the weaker party in the case of a contract, including consumers. Consumers are permitted to bring proceedings in their own member state, subject to certain conditions being met. The court noted that the plaintiff sought to rely on Articles 15 and 16 in that regard.
Article 15(1) provides that a consumer contract is one which is entered into by a person outside of his or her trade or profession, and where, among other things, the:
"contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities."(2)
Article 16 gives a consumer a choice of jurisdiction within which to bring proceedings: either where the other party is domiciled or where the consumer is domiciled. In this case, the plaintiff contended that she was entitled to sue in Ireland because:
The central question therefore was whether the plaintiff was in law a consumer for the purposes of the regulation, and a key consideration was whether the relevant services had been directed towards Ireland.
The High Court noted that the meaning of 'consumer' had been considered in Benincasa v Dentalkit Srl,(3) in which it was recognised that a 'consumer' is a person acting "for a purpose which can be regarded as being outside his trade or profession", such that it affects only a private final consumer, not engaged in trade or professional activities.(4) It was further stated therein that:
"only contracts concluded for the purpose of satisfying an individual's own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically".(5)
The court also cited Hotel Alpenhof GesmbH v Oliver Heller,(6) which considered whether using a website to conclude a contract warranted a finding that an activity was being 'directed' within the meaning of Article 15(1)(c). In holding that it was not, the court opined that the notion in Article 15(1)(c) of activity "directed to" the member state of the consumer's domicile is not defined in the regulation and, as such, "must be interpreted independently by reference to principally to the system and objectives of the Regulation, in order to ensure it is fully effective". However, it held that the protection for consumers is not absolute. If that was intended, the rules would not require activities to be directed towards a member state. Rather, according to the European Court of Justice (ECJ), "the trader must have manifested its intention to establish commercial relations with consumers from one or more other Member States, including that of the consumer's domicile", and there must be "evidence demonstrating that the trader was envisaging doing business with consumers domiciled in other Member States".(7)
In this regard, the ECJ stated that such evidence does not include "mention on a website of the trader's email address or geographical address, or of its telephone number without an international code". The ECJ said that there must be a clear expression of the intention to solicit the custom of that state's consumers, which includes mention that it is offering its services or goods in one or more member states designated by name. It went on to set out a non-exhaustive list of criteria from which it could be inferred that the trader's activity was directed to the member state of the consumer:
"the international nature of the activity, mention of itineraries from other Member States for going to the place where the trader is established, use of a language or of a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader's site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States. It is for the national courts to ascertain whether such evidence exists."(8)
However, conversely, the ECJ also pointed out that:
"On the other hand, the mere accessibility of the trader's or the intermediary's website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address or other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established."(9)
It concluded that:
"In order to determine whether a trader whose activity is presented on its website or that of an intermediary can be considered to be 'directing' its activity to the Member State of the consumer's domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader's overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer's domicile, in the sense that it was minded to conclude a contract with them."
In reaching such determination, it is for the national courts to consider whether the evidence that exists points to such a conclusion.
Having reviewed the law and considered the evidence, and assuming that the case involved a contractual claim rather than one which predominantly had its basis in tort, the High Court said that it was difficult to conclude that the proceedings should be brought Ireland. This was because there was no evidence before the court to indicate that the defendants directed their activities in any specific way to the Irish market. In reaching that conclusion, the court relied on the following as pertinent facts:
Taking this into account, the High Court concluded that the defendants' activities were not directed to consumers in Ireland. On that basis, the plaintiff was not a consumer for the purposes of Article 15 and the court granted the relief sought by the defendants, since the Irish court did not properly have jurisdiction over the dispute.
The decision is a useful recitation of the criteria that apply when considering whether an individual can claim to be a consumer for the purposes of the regulation in seeking to bring proceedings in a particular jurisdiction. Because an individual may act outside of his or her trade or profession in engaging a service, particularly online, it does not necessarily mean that the individual is a consumer for the purpose of the regulation. Prospective plaintiffs would be well advised to bear this in mind when considering where to bring proceedings founded on contract claims as a consumer.
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