EUPillar Coys of Kensington Automobiles Limited v Tiziana Pugliese [2011] EWHC 655

Summary

The claimant was an auction organiser. The defendant was an Italian national. The auction was organised in Monaco. The defendant signed a Telephone/Commission Bidding Form on 17th May 2009. The auction form contained an English jurisdiction clause. Although the defendant completed the form, she argued that she did not participate in the auction. She claimed that she had “almost no understanding of written and spoken English.” On 23rd June 2010, Master Foster held that the English court did not have jurisdiction. On 5th October 2010, the claimant was given a permission to appeal. The English High Court, following an analysis of the parties’ arguments, allowed the appeal. It was concluded that the claimant had a good arguable case that the requirements of Article 23 were met. In this context, Mr Justice Ramsey held: “16 […] the Claimant has established a good arguable case that the Defendant did participate in the auction. She evidently completed the Form on the basis that she would participate in the auction. Mr Gregor Wenner, the Claimant's Italian Auction manager, was the person who conducted the telephone bid for the Defendant on the day of the auction and annotated the Form with her bid. The Defendant was sent the auction bill of sale and a letter of 12 June 2009 asking for payment. The letter was written in Italian and the Defendant did not, at any time, dispute that she had taken part in the auction until she set out in paragraph 9 of her Witness Statement of 29 March 2010 simply this: “I did not participate in the auction” . I consider that there is a good arguable case that the Defendant participated in the auction and that her bid and the fall of the auctioneer's hammer concluded an agreement which was evidenced in writing. 17 On that basis the central question is therefore whether the terms of the Form relied on by the Claimant provide a sufficiently strong argument to overcome the various matters relied upon by the Defendant so as to establish a “much better argument” that there was consensus between the parties as to clause 5 of the Conditions of Business. […] 48 On the basis of an objective analysis of the Form signed by the Defendant, which I consider to be the correct approach in cases where article 23(1)(a) is relied upon, for the reasons set out above I have come to the overall conclusion that it is the Claimant who has a much better argument than the Defendant that the requirements of article 23 are met and that it can be established, clearly and precisely, that Clause 5 of the Claimant's conditions of business conferring jurisdiction on this Court was the subject of consensus between the parties. ” [16, 17 and 48].