Summary
The claimant, Hillside, was an English betting company. The defendant, Mr Baasland, lost over £2.9 by placing on-line bets on bet 365 between 2005 and 2008. Mr Baasland, referring to his gambling problems, wanted Hillside to “take responsibility” and contribute to his loss. On 7th November 2007, his Norwegian advocate sent to Hillside “Notice of forthcoming litigation”, threatening with litigation.
On 2nd March 2009, Hillside commenced proceedings against the defendant in England, seeking a non-liability declaration. Although the jurisdiction of the English court was challenged, the court assumed jurisdiction under the Lugano Convention. On 24th February 2010, the defendant’s jurisdictional challenge was dismissed.
On 14th May 2010, the particulars of the claim were served to the defendant. No defence was put forward before the English court. An application by the claimant for summary judgment was made in November 2010. An important issue, which was inter alia considered, was about the applicable law under Rome II. It was held that English law must apply. Mr Justice Smith noted that:
“43 There is no evidence that any of the conditions in Art 5(2) is satisfied in this case. The only condition that I need mention is this: ‘if in [the country of the consumer's habitual residence] the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract’. There is no evidence that there was any such invitation addressed to Mr Baasland, and, while the precise scope of the term ‘advertising’ is not clear, I do not consider that it covers any circumstances in which goods or facilities can be found on the internet, through a search engine or in some similar way. […] I therefore do not need to consider Art 5(4).
44 The remaining question, as far as the application of the Rome II Regulation is concerned, is whether the position was different when s 18 of the Gaming Act 1845 was in force. I consider this briefly for the sake of completeness, although at most the regime of the Rome II Regulation applied only from 19 August 2007, shortly before s 18 was repealed on 1 September 2007.
45 The effect of s 18 of the Gaming Act 1845 was that any contract between Mr Baasland and Hillside was null and void, and Mr Baasland could not under the law of England bring proceedings to recover the money deposited in his wallet. There was therefore no chose in action represented by the funds deposited in the wallet. Does this mean that Mr Baasland's loss was suffered not in England but in Norway? I do not consider that it does. Although Mr Baasland had no claim in debt for the sum in the wallet, in substance he confidently and reasonably expected that he could have repaid to him the moneys referable to his wallet which were in the bank accounts with RBS. The reality is that he suffered loss when the moneys referable to his wallet were reduced because he placed bets, and so that the immediate damage that he suffered as a result of the alleged wrong was in England.
46 If I had reached a different conclusion about where the damage occurred, I should have nevertheless considered that English law would govern the claim because Art 4(3) of the Rome II Regulation applies. Any tort, as it seems to me, is manifestly more closely connected with England than any other country because:
(i) the losses occurred by way of dealings with funds in an English bank account;
(ii) they resulted from the facilities offered through a website which was owned by an English company, which was operated from England, and to which Mr Baasland might have had access from England, Norway or any other country; and
(iii) the relationship was governed by a relationship of which the proper law or putative proper law is English.” [43-46]