Summary
There was a contract for sale of satellite antennae and related equipment. The claim was that the supplied equipment was defective.
The claimant, 7E, was a company incorporated in England. The defendant, Vertex, was a company incorporated in Germany. The claimant was suing in England under Art 5(1) of Brussels I. The English proceedings were served to Vertex in Germany.
The jurisdiction of the English court was challenged by Vertex, seeking a declaration that the English court had no jurisdiction. In this context, the defendant invoked a choice-of-court agreement which conferred exclusive jurisdiction to a German court. The jurisdictional clause was claimed to be incorporated in Vertex’s standard terms which were sent to 7E with a signed offer of supply. In response to the offer, 7E had made a purchase order. In this context, an important preliminary issue was whether, in these circumstances, the parties were bound by such a jurisdictional clause.
On 23rd September 2005, HHJ Knight QC that the jurisdictional clause was valid. As a result, the English court had no jurisdiction.
On 26th March 2006, Mr Justice Jack, sitting at the English High Court, held that he did not have jurisdiction to hear the appeal in respect of the judgment of the Central London County Court. The High Court judge felt that the judgment should have gone to the Court of Appeal. That said, he went on to hold that, if he had jurisdiction, he would have allowed the appeal, submitting that:
“20 […] a party is bound by a term expressly incorporated into a signed contract by a reference in that contract to general terms which include the particular term as to jurisdiction is that it is then made sufficiently clear that the party agrees to it. What he has made his document expressly refers to the terms. A different approach is to be taken when the reference is in a document which he has not signed and has not made his. I conclude that the equivalent here to the signed contract in Salotti is 7E's purchase order and not the purchase order together with the quotation. Accordingly I would hold that the clause giving jurisdiction to the court at Duisberg is not effective for the purpose of Article 23 and that Vertex cannot rely on it against 7E.” [20]
The case reached the Court of Appeal which granted the parties’ permission to appeal against Mr Justice Jack’s judgment. The Court of Appeal held that the contract, which consist of a signed quotation and a purchasing order accepting it, satisfied the written form requirement for the purposes of Brussels I. In this context, Sir Antony Clarke expressly stated that:
“43 […] The contract here, comprising the quotation signed by the defendant, which expressly referred to the terms and conditions including the German jurisdiction clause, and the purchase order accepting the quotation which was signed by the claimant amounts to a writing which complies with Art.23.
[…]
46 […] we conclude that (as stated above) there was here an agreement that the relevant courts in Germany had exclusive jurisdiction to settle the dispute which has arisen in connection with the contract between the parties within the meaning of Art.23 . It follows that the appeal against Jack J.'s decision to the contrary must be allowed. The English court must decline jurisdiction in favour of the relevant court in Germany.” [2007] EWCA Civ 140 [43 and 46].