EUPillar Chester Hall Precision Ltd v Service Centres Aero France [2014] EWHC 2529 (QB)

Summary

The claimant was an English company. The defendant was a French company. There was a contract for sale of semi-finished metal products for the aircraft industries. The claimants argued that they had overpaid $181,851.71 because several of the invoices had been for the incorrect amount. The English proceedings were commenced on 8th January 2014. The defendant challenged jurisdiction arguing that there was a valid French jurisdiction clause which was included in their terms and conditions. The English court dismissed the defendant’s jurisdictional challenge. Mrs Justice Slade held: “9 […] Did the parties agree that the Commercial Court at Nantes should have exclusive jurisdiction over the disputes between them? The only evidence relied upon by the defendant is the incorporation by reference of the defendant’s general terms and conditions. It is not material that the claimant may not have seen those general terms and conditions. The claimant agreed to accept goods on the defendant’s terms and conditions. However, I am not satisfied on the evidence that the terms and conditions produced before the court now were those on the reverse of the relevant forms or even were those applied generally by the defendant at the material time in 2008 and 2009. The defendant contended that the point that the general terms and conditions were not on the reverse of their documentation was raised late by the claimant. This is no doubt correct. However, it is for the defendant to establish that there is an applicable exclusive jurisdiction agreement and that they have the better of the argument on the materials before the court on this application to show that that is the case. It is apparent from the evidence relied upon by the defendant (namely, the statement of their solicitor, Mr Henson) that, as the transactions in issue took place some years ago, the defendant has not been able to locate all relevant documentation; two of the five relevant order confirmations were not available. Neither the originals, nor copies of the order confirmation with terms and conditions on the reverse, were put before the court. This may be unsurprising, as Mr Halsey, the production director of the claimant, stated that only the front page of the acknowledgement of receipt or confirmation order was sent by the defendant to the claimant; no general terms and conditions were sent to the claimant. Whilst it is likely that some terms and conditions of the defendant were available and would have been incorporated by reference in the acknowledgement of receipt which was evidence of an agreement between the parties, I am not satisfied that the terms and conditions produced to the court in 2014 were those applicable to these transactions in 2008 and 2009. There was no evidence from a witness from the defendant to establish that the exhibited terms were those which were incorporated in 2008 and 2009. The defendant has not established the burden of showing that they have the better of the argument that the clause conferring exclusive jurisdiction on the Commercial Court of Nantes was in the terms and conditions incorporated by reference in the agreement between the parties in 2008 and 2009. Whether the application of this test is that the defendant must establish a good arguable case—see the case of Fosby v Ranovito [2010] 1 Lloyd’s Rep. 384 , at [34]—or whether the application of the test is that the applicant must show that the exclusive jurisdiction clause was incorporated on the balance of probabilities, they have failed to do so.” [9]