In a post-Brexit first, the Commercial Court has granted an anti-suit injunction (ASI) in relation to proceedings issued in an EU member state. Ebury Partners Belgium SA/NV v (1) Technical Touch BV; and (2) Jan Berthels also provides a useful refresher on the key principles relating to the incorporation of standalone terms into a contract.
The claimant (Ebury) and the first defendant (TT) were both based in Belgium. TT’s director (and the second defendant), Mr Berthels, completed an online application form for the use of currency services offered by Ebury. At the end of the form, he was required to tick a box to confirm that TT agreed to Ebury’s terms and conditions (the terms), which included English governing law and jurisdiction clauses (the jurisdiction clauses). He did so without downloading or reading the Terms.
Some time later, a dispute arose between the parties. TT issued proceedings in Belgium which (amongst other things) challenged the validity of the Terms under Belgian law (the Belgian Proceedings) and Ebury issued parallel proceedings in England in accordance with the jurisdiction clauses. Both parties went on to issue separate applications before the English court:
- Ebury sought an ASI to prevent TT from pursuing its claim in Belgium.
- TT sought: (i) an order that the English court had no jurisdiction to try the claim before it or, in the alternative, that the English court should decline to exercise any jurisdiction that it may have; and (ii) the dismissal or stay of the English proceedings until the conclusion of the Belgian Proceedings.
Jacobs J began by considering the key principles governing ASI applications (paragraph 20, judgment). Upon reviewing QBE Europe SA/NV v Generali España de Seguros Y Reaseguros, he noted that:
- The court will only exercise its power under Section 37(1) of the Senior Courts Act 1981 to restrain foreign proceedings where it is “just and convenient to do so”.
- The touchstone of this is “what the ends of justice require”.
- The court should exercise its jurisdiction to grant an ASI with caution.
- The applicant must establish with a “high degree of probability” that there is a jurisdiction agreement which governs the dispute.
- The court will generally exercise its discretion to restrain proceedings brought in breach of such an agreement unless there are strong reasons to refuse relief. The burden of proving this falls to the defendant.
Was there a jurisdiction agreement?
The “critical question” for the court was whether Ebury could show to the requisite standard that, as a matter of English law, the jurisdiction clauses had been incorporated into the contract. Jacobs J considered that there could be no doubt that Ebury had provided TT with sufficient notice of the terms and that by ticking the box TT had indicated its agreement to them (paragraph 8, judgment).
While TT accepted that some of the provisions of the terms had been incorporated into the contract, it argued that the jurisdiction clauses were ‘ancillary’ (as opposed to ‘commercial’ terms which were “germane to the [parties’] relationship”) (paragraph 91, judgment). Jacobs J was not persuaded by this argument. By ticking the relevant box, Mr Berthels had provided “clear assent” to all of the terms. While the parties’ contractual negotiations had continued after this point, the parties had been:
“…clearly in agreement… that if they did move forward together contractually, the [terms] (and all of them) would be applicable to their dealings. That is, on any view, the effect of the assent that was given when the box was ticked” (paragraph 96, judgment).
Jacobs J also considered that the fact that Mr Berthels had not taken the time to read the terms was neither here nor there. This did not affect the question of whether Ebury had provided TT with reasonable notice of the terms, nor whether (objectively speaking) TT had assented to them. Further, the application of English law would be consistent with a “dispassionate, internationally minded approach” to the claim (paragraph 108, judgment).
“Strong reasons” for refusing relief?
The court then turned its mind to whether it would be just or convenient to grant the ASI. As we explain above, the burden was on TT and Mr Berthels to show that there were “strong reasons” for refusing relief.
While TT put forward a number of arguments in this regard, Jacobs J was not persuaded that these met the required threshold:
- Arguments that Dutch language documents were best considered by a Belgian court and that the parties were closely connected to Belgium were of “no substantial weight” (paragraph 120, judgment).
- Similarly, the fact that the Belgian proceedings were at a slightly more advanced stage than the English proceedings could not amount to a strong reason to refuse the relief sought by Ebury. Those proceedings had been commenced in breach of the jurisdiction clauses and were subject to a prompt challenge.
- Submissions to the effect that it was more desirable for the parties to litigate in Belgium were essentially forum conveniens In the context of an application for anti-suit relief, it was not open to a party to make such arguments where these would have been foreseeable to the parties at the time they entered into the contract (UBS AG v HSH Nordbank AG).
- While the applicability of Belgian law was likely to be a substantial issue, this did not provide a strong reason for refusing to grant the ASI: TT and Mr Berthels’ arguments may prove to be of no relevance. In any event, the Commercial Court was accustomed to determining matters of foreign law.
- While the effectiveness of the anti-suit relief sought by Ebury was called into question, Jacobs J noted that TT and Mr Berthels had provided no clear evidence that they would disobey an ASI. In any event, there were effective remedies available to Ebury to dissuade them from doing so.
Jacobs J also considered expert evidence to the effect that the Belgian courts were likely to find the jurisdiction clauses to be invalid. He considered this to provide a “positive reason” why the relief sought by Ebury should be granted:
“[I]t is prejudicial to a party if it is required to litigate in a jurisdiction which will or may apply a different applicable law from that which the parties have agreed. The fact that a party is or may be seeking the application of a law contrary to that agreed between the parties provides a strong reason why an injunction should be granted, in order to protect the integrity of the parties’ bargain” (paragraph 126, judgment).
In a post-Brexit world, this novel case demonstrates the approach taken by the court to applications for the restraint of proceedings issued in an EU member state. It is also yet another example of the dangers of accepting terms without reading them – and the costly consequences which may follow.
This article first appeared on the Practical Law Dispute Resolution Blog on 11 January 2023 here.