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

• Published date: 09 December 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Consumer Credit, Trials & Appeals & Compensation, Dodd-Frank, Consumer Protection Act
• Law Firm: Deka Chambers
• Author: Anirudh Mandagere

On 31^st 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...