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England and Wales High Court (King's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Roach v Vallarta Adventure, SA De CV [2023] EWHC 2674 (KB) (10 September 2023) URL: http://www.bailii.org/ew/cases/EWHC/KB/2023/2674.html Cite as: [2023] EWHC 2674 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
____________________
Chelsea Roach |
Claimant |
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- and - |
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Vallarta Adventure, S.A de C.V |
Defendant |
____________________
for the Claimant
Ms Kate Holderness (instructed by Clyde & Co. LLP) for the Defendant
Hearing dates: 9 June 2023
____________________
Crown Copyright ©
Dexter Dias KC :
(Sitting as a Deputy High Court Judge)
Section Contents Paragraphs I. Facts 5-8 II. Applications & issues 9-13 III. Materials 14 IV. Issue 1: Consumer contract 15-37 V. Issue 2: Tort gateway 38-76 VI. Disposal 77-78
B123: hearing bundle page number;
CS/DS §45 claimant/defendant skeleton paragraph number.
§I. Facts
§II. Applications & issues
Defendant applications:
1. Set aside of the order granting permission for service out of the jurisdiction (application notice dated 22 November 2022);
2. Set aside of the service of the claim form and particulars of claim on the defendant;
3. Declaration that the English courts do not have or should not exercise jurisdiction in respect of the claim.
Claimant applications:
1. Permission to amend the claim form and particulars of claim (application dated 26 January 2023);
2. Grant of permission to rely on CPR r.6.33(2)(b)(ii);
3. (in the alternative) amendment of the order granting the claimant permission to serve out to include reference to CPR PD6B, paragraph 3.1, (4A)(b) and (c);
4. Dispensing with the requirement for re-service of the claim form with Form N510;
5. Declaration that the court has jurisdiction over the proceedings.
Issue 1:
Should the contract be deemed a "consumer contract" for the purposes of section 15B(1) of the Civil Jurisdiction and Judgments Act 1982, and thus can the claimant serve out without seeking the court's permission by reason of CPR r.6.33(2)(b)(ii)? ("Consumer contract issue")
Issue 2:
If not 1., should the court nevertheless be seized with jurisdiction due to the operation of the tort gateway? ("Tort gateway issue")
§III. Materials
§IV. Issue 1: Consumer contract
Service of the claim form where the permission of the court is not required – out of the United Kingdom
6.33
…
(2) The claimant may serve the claim form on a defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under sections 15A to 15E of the 1982 Act and –
(a) No proceedings between the parties concerning the same claim are pending in the courts of any other part of the United Kingdom; and
(b)
…
(ii) the defendant is not a consumer, but is a party to a consumer contract within section 15B(1) of the 1982 Act
(1) The consumer is domiciled in United Kingdom (s.15A);
(2) The subject-matter of the proceedings and nature of the proceedings are within the scope of Article 1 of Regulation (EU) No.1215/2012 (Brussels 1 Recast) (s.15A);
(3) These are proceedings whose subject-matter is a matter relating to a consumer contract where the consumer is domiciled in the United Kingdom (s.15B);
(4) The claimant is a "consumer" in relation to a consumer contract - a person who concludes the contract for a purpose which can be regarded as being outside the person's trade or profession (s.15E(1));
(5) There is a "consumer contract" concluded with a person who "by any means" directs commercial activities to the United Kingdom (s.15E(1)(c)).
"60. The essential matter to be examined in the present cases is therefore the determination as to whether the undertaking directs its activities to the
member state of the consumer's domicile or to several states including that member state. Various aspects have to be taken into consideration when interpreting the concept of the directing of activities under art 15(1)(c) of Regulation 44/2001. First, it is necessary to establish by various methods of interpretation how widely that concept is to be interpreted and then it is necessary to ascertain what criteria are relevant to an assessment as to whether the undertaking directs its activities to the member state of the consumer's domicile via a website.
61. When examining how widely to interpret the concept of the directing of activities in art 15(1)(c) of Regulation 44/2001 it is necessary, above all, to take up a position on two questions. First, it is necessary to clarify whether the mere fact that a website can be consulted is sufficient for the directing of activities within the meaning of art 15(1)(c). Secondly, it is necessary to examine whether a distinction has to be drawn between so-called 'interactive' and 'passive' websites when interpreting that concept. Interactive websites enable a contract to be directly concluded via the internet, whereas passive websites do not.
63. It can be established from a literal interpretation that the customary
meaning of the concept of the directing of activities to a member state or
several member states is that the undertaking actively endeavours to conclude contracts with consumers from that member state or those member states. It is therefore essential for there to be active conduct on the part of the undertaking, the objective and outcome of which is to win customers from other member states. An interpretation whereby mere access in the member state of the consumer's domicile to a website would suffice for the directing of activities to that state would ultimately undermine the significance of the concept of 'directing'. It can therefore be established on the basis of the normal meaning of the concept of the directing of activities that the mere fact that a website can be consulted on the internet is not sufficient to justify a finding that the undertaking is directing its activities to the member state of the consumer's domicile. Nor, on a literal interpretation, can any support be found for the view that, when interpreting this concept, a distinction is to be drawn between interactive and passive websites, as the wording of this article does not make any mention of different kinds of websites.
64. In the context of a teleological interpretation of the concept of the
directing of activities, as correctly pointed out by the Netherlands government the interests of the consumer, who would like jurisdiction to lie with the courts of the place in which he has his domicile, have to be balanced against the interests of the undertaking, which endeavours to ensure that that court does not have jurisdiction unless the undertaking has consciously decided to direct its activities also to the member state concerned or to pursue its activities there. The objective of this article is therefore to secure special rules of jurisdiction for the consumer if the consumer contract indicates a sufficient connection with the member state of the consumer's domicile. At the same time, however, it must be accepted when interpreting this article that the undertaking can avoid the possibility of suing and being sued in the member state of the consumer's domicile by not directing its activities to the consumer's member state so that there is no sufficient connection with that state. If the legislature had wanted jurisdiction to be determined by the special rules governing consumer contracts simply on the ground that a website can be consulted on the internet, would have made the mere existence of a website a condition for the application of those provisions rather than the directing of activities37. It may therefore be concluded on the basis of a teleological interpretation that the mere fact that a website can be consulted on the internet is not sufficient for activities to be 'directed' within the meaning of art 15(1)(c) of Regulation 44/2001."
"64. The question which this raises is whether intention on the part of the
trader to target one or more other member states is required and, if so, in what form such an intention must manifest itself.
65. That intention is implicit in certain methods of advertising.
69. It does not follow, however, that the words 'directs such activities to' must be interpreted as relating to a website's merely being accessible in member states other than that in which the trader concerned is established.
70. Whilst there is no doubt that the aim of arts 15(1)(c) and 16 of Regulation 44/2001 is to protect consumers, that does not imply that that protection is absolute (see, by analogy, with regard to Council Directive (EEC) 85/577 (to protect the consumer in respect of contracts negotiated away from business premises) (OJ 1985 L372 p 31), E Friz GmbH v Carsten van der Heyden Case C-215/08 (2010) Transcript (judgment), 15 April (para 44))."
(1) The requirement of directing to or at can be satisfied by an intention by the trader to target the country of domicile, but intentionality is not necessary if the net effect of the trader's conduct and activities results in services being directed to a certain country;
(2) The trader does not have to "purposefully direct" its services towards the country of domicile in a substantial way;
(3) Having a website accessible from the country of the consumer domicile is in itself ordinarily unlikely to be sufficient;
(4) Instead, overall there must be a sufficient connection between the trader offering the service and the country of consumer's domicile.
Submissions
(1) The defendant offers activities aimed at tourists – that includes British tourists;
(2) The defendant's website at the time of the incident mentions that activities are featured in international publications, including the BBC;
(3) The defendant's website references their excursions as being "world class";
(4) The website banner advertises its airport transfer services from Puerto Vallarta airport, which is an international airport;
(5) Direct flights to Puerto Vallarta are available from UK airports;
(6) The contact telephone number displayed on the banner of the defendant's website is an international number;
(7) Tourists feature in the photographs of the excursions;
(8) A reel of TripAdvisor reviews spooled near the bottom of the website splash page features reviews all in English;
(9) The website is entirely in English
(10) The prices are advertised in US dollars.
(1) The defendant has operated in Mexico for 25 years and, apart from a brief period when it was affiliated with a Bahamian company, it has only ever operated in Mexico;
(2) The defendant targets the local tourism market in Mexico, and the North American market;
(3) Steps taken to target the North American market include setting up telephone lines in the USA and Canada, displaying the defendant's website in the English language, showing prices in US dollars, registering Vallarta's website domain in the USA, and targeting its online advertising exclusively to Mexico, the USA and Canada;
(4) The "vast majority" (Carbajal1/19-20 (B333)) of the defendant's customers come from the USA, Canada and Mexico (together accounting for 95 per cent of its customers). By contrast, in 2019 and 2022, between 1.6 per cent and 0.6 per cent of the defendant's customers were British.
Discussion
"Notwithstanding this being a British broadcaster, the aim was to reinforce Vallarta's advertisement and marketing strategy to mainly attract customers from the United States and Canada, not the United Kingdom."
"17 Finally, in recent years Vallarta has used publicity and advertising channels such as Google Ads and social media platforms including Facebook, Instagram, Tick Tock and Twitter. These channels allow companies to target their advertising to specific jurisdictions.
18 To date, Vallarta directed the entirety of the annual advertising and publicity budget to the promotion and advertisement of their packages and tours in the United States, Canada and Mexico, through the above-mentioned channels. Contrastingly, I can confirm that Vallarta does not seek to advertise nor promote its services in the European market. As such, over the past few years none of the budget was allocated to the promotion of Vallarta's services in Europe."
Conclusion
§V. Issue 2: Tort gateway
(1) In general the legal burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. The evidential burden will rest on the party who seeks to establish the existence of matters, which will assist that party in persuading the court to exercise its discretion in its favour;
(2) If the court is satisfied by the defendant that there is another available forum, which is clearly a more appropriate forum for the trial of the action, the burden will shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England;
(3) The burden on the defendant is not just to show that England is not the natural or appropriate forum, but to establish that there is another forum which is clearly or distinctly more appropriate than the English forum;
(4) The court will look to see what factors there are which point in the direction of another forum as being the "natural forum", i.e. that with which the action has the most real and substantial connection. These will include factors affecting convenience or expense (such as availability of witnesses) and such other factors as the law governing the transaction and the places where the parties reside or carry on business, and also whether the claim is part of a larger overall dispute which would be damaged by being fragmented; or where the court has specialist expertise which ought to be made available in related cases;
(5) If the court concludes at that stage that there is no other available forum that is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay;
(6) If, however, the court concludes that there is some other available forum that prima facie is clearly more appropriate, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted. In that enquiry, the court will consider all the circumstances of the case, including circumstances that go beyond those taken into account when considering connecting factors with other jurisdictions;
(7) A stay will not be refused simply because the claimant will thereby be deprived of "a legitimate personal or juridical advantage", provided that the court is satisfied that substantial justice will be done in the available appropriate forum.
"READ THIS DOCUMENT CAREFULLY BEFORE SIGNING, THIS DOCUMENT HAS LEGAL CONSEQUENCES, WILL AFFECT YOUR LEGAL RIGHTS AND WILL LIMIT OR ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.
In consideration of being permitted by Vallarta Adventure, S.A. de C.V., ("Vallarta Adventures") to participate in the Program, I understand and acknowledge that by signing below I am legally agreeing to the statements in the following Program Registration, Release and Waiver of Liability, and Assumption of Risk and Indemnity Agreement ("Agreement") and that these statements are being accepted ad relied upon by the Released Parties, as defined below…
5. WAIVER OF JURY TRIAL/VENUE/HEADINGS. This waiver extends to any claim that may be made by my heirs, assigns or legal representatives in Mexico and abroad, as well as any claim against any person or entity … who have been involved directly or indirectly in the promotion, marketing and/or sale of the Program or any other way. Should this Agreement be violated and suit be brought against any of the Released Parties, my right to a jury trial is waived and the proper jurisdiction and venue for resolution for any such suit, which shall be tried non-jury, shall be that of Puerto Vallarta, state of Jalisco, Mexico…"
"For the purpose of determining an issue about jurisdiction, the
traditional test has been whether the claimant had "the better of the
argument" on the facts going to jurisdiction. In Brownlie v Four Seasons
Holdings Inc [2017] UKSC 80, [2018] 2 All ER 91, [2018] 1 WLR 192 (at [7])
this court reformulated the effect of that test as follows:
"… (i) that the claimant must supply a plausible evidential basis for
the application of a relevant jurisdictional gateway ["Limb 1"]; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so ["Limb 2"]; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. ["Limb 3"]"
It is common ground that the test must be satisfied on the evidence
relating to the position as at the date when the proceedings were
commenced."
"Limb (iii) is intended to address the case where the court is unable to form a decided conclusion on the evidence before it and is unable to say who has the better argument. The court must ask 'whether the claimant's case had "sufficient strength" to allow the court to take jurisdiction … To an extent it moves away from a relative test and, in its place, introduces a test combining good arguable case and plausibility of evidence … [T]his is a more flexible test which is not necessarily conditional upon relative merits' [80]"
"document unilaterally prepared by the provider to establish in uniform formats, the terms and conditions applicable to the acquisition of a product or the provision of a service…" (Article 85, Federal Consumer Protection Law)
"COMPETENCE THROUGH EXPRESS SUBMISSION. THE RULE ESTABLISHED IN ARTICLE 1093 OF THE COMMERCIAL CODE DOES NOT APPLY TO CLAUSES STIPULATED IN BANKING ADHESION CONTRACTS WHEN INVOLVING A VIOLATION OF THE GUARANTEE OF ACCESS TO THE GRANTING OF JUSTICE.
In accordance with the provisions of Articles 1093 and 1120 of the Commercial Code, territorial competence can be extended where the parties to a legal act can submit, for the matter in dispute, to the courts of a specific location under a submission agreement in which the interested parties expressly declare their will and intent. Nevertheless for this submission to be configured, there must of necessity be the will of the parties to waive the jurisdiction granted by Law and the designation of competent courts, however with the condition that these solely be that of the domicile of one of the parties, that of the place of performance of any of the contracted obligations, or that of the place of the res. Whilst it is true that under the terms of Article 78 of the Commercial Code, the will of the parties is the supreme arbiter for contracts — among them adhesion contracts for the provision of banking services —; it is also the case that this generic rule in commercial matters is not applicable to a submission agreement when submitting the financial user to the jurisdiction of a place different to that of his habitual residence. Indeed it is a well-known fact that banking institutions do not solely offer their services within a specific territorial jurisdiction but rather do this over the entire national territory, earning money from such activities.
By merit of the above it is logical and reasonable to consider that, in the event of dispute, one should no obligate financial users to have to relocate and incur extraordinary costs in order to be able to have effective access to justice, all the more so if we are looking at a commercial adhesion contract whose terms and conditions are not negotiable. Consequently and regardless of the contracting parties having specified an express Clause of submission to the courts and tribunals of a specific territorial circumscription, the fact is that when involving adhesion contracts concluded with banking institutions, this rule does not apply, the parties having to follow the interpretation that most favours the right of access to justice enshrined in Article 17 of the Federal Constitution, which states that individuals have freedom to set competence where the case is being heard, taking as the parameter the place of their domicile, always provided this safeguards the interest of the defendant credit institution, translated into the right to defence not being impaired through lacking the infrastructure or representation in the places where the dispute unfolds."
"it is not valid to extend the territorial jurisdiction agreed in a contract for the provision of services if the where the case is to be heard is different to that of the consumer's habitual residence."
"In determining whether a jurisdiction clause of a contract of adhesion entails a violation of the human right of access to jurisdiction, Mexican Courts would mainly take into consideration: (i) if the place where the trial should be conducted is different to the one where the consumer has its habitual residence, and (ii) if the economic burden imposed to the consumer may eventually make difficult or even impossible to defend their rights, considering an inherent disparity between the parties involved in an adhesion contract."
"So, in my opinion, in deciding to apply by analogy precedent 1a./J. 1/2019 (10a.), and precedent I.11o.C.134 C (10a.) to Waiver, Mexican Courts would not restraint its analysis to merely determine whether provider of services has branches in the place of consumer's residence, but would determine a decision considering the best way to "safeguard the rights of the public user and consumer and to seek fairness, certainty and legal security in relations between providers and consumers" considering that a disparity exists between the parties, whereas the consumer is the weak one, and provider the strong one that imposes the contract of adhesion. And at the same time deciding in a way that services provider's right to a legal defense should not be diminished due to a lack of infrastructure or representation at the places where the dispute unfolds."
"It is true that in both cases the Courts indeed considered that the services providers had branches in the place where the consumers had his place of residence."
"So, in my opinion, in deciding to apply by analogy precedent 1a./J. 1/2019 (10a.), and precedent I.11o.C.134 C (10a.) to Waiver, Mexican Courts would not restraint its analysis to merely determine whether provider of services has branches in the place of consumer's residence, but would determine a decision considering the best way to "safeguard the rights of the public user and consumer and to seek fairness, certainty and legal security in relations between providers and consumers" considering that a disparity exists between the parties, whereas the consumer is the weak one, and provider the strong one that imposes the contract of adhesion. And at the same time deciding in a way that services provider's right to a legal defense should not be diminished due to a lack of infrastructure or representation at the places where the dispute unfolds."
"Considering the foregoing, I do not agree that jurisdiction clauses in contracts of adhesion are necessarily invalid where the consumer has its habitual residence in another jurisdiction, but depending on the elements of the specific case, they may be considered invalid by a court of law."
"7. Is it agreed that a jurisdiction clause in a consumer contract is invalid if the place where the trial should be conducted is different to the one where the consumer has its habitual residence as it will affect their right to access to jurisdiction contained in Article 17 of the Constitution3 and the jurisprudence? If not, why not?"
"This is not agreed. I assume that this question refers to precedents 1a./J. 1/2019 (10a.) and I.11o.C.134 C (10a.), which may be distinguished from the current proceedings on the facts. 1a./J. 1/2019 (10a.) provides that the rule regarding jurisdiction clauses in the Code of Commerce ('Código de Comercio') is not applicable to contracts of adhesion when, in the specific case, there is a violation of the consumer's right to access to jurisdiction; however, it does not provide that all jurisdiction clauses in contracts of adhesion are invalid where the consumer has its habitual residence in another jurisdiction. Moreover, the case law provides that the rights of the banks should also be protected, including their right to a proper legal defence, which may be affected by not having infrastructure or representation in the jurisdiction in which the consumer seeks to have the dispute heard.
Precedent I.11o.C.134 C (10a.) does not meet the requirements to be considered as binding within the Mexican legal system; however, as a summary, it provides that the reasoning in precedent 1a./J. 1/2019 (10a.) should apply by analogy to all consumer contracts. This precedent also came from a case in which the contract of adhesion was signed in the jurisdiction where the consumer resided, and the services were mainly supplied in that same place. Also, the defendant was a telephone company
which had offices in said jurisdiction."
(1) The claimant is habitually resident and domiciled in the United Kingdom;
(2) The claimant is suffering ongoing financial losses in England caused by the injury;
(3) (It is asserted that) "all necessary medical and other evidence would need to be obtained from experts based in England" (David1/28.ix. [18/289]);
(4) The claimant would need Spanish documents translated into English;
(5) The claimant would need an interpreter for the trial;
(6) Mexican courts, it is said, are less adept at dealing with catastrophic injury;
(7) It is submitted that it is "unaffordable, and disproportionately costly, for the Claimant to have to frequently travel to and from Mexico as needed to progress her claim";
(8) This is a personal injury case and not a complex financial or commercial transaction between institutions, and has a vulnerable claimant at its heart;
(9) There is likely to be, as Mr Woolf put it, "a raft of expert issues concerning quantum";
(10) The claimant is likely not to qualify for legal aid due to her means and this would restrict her ability to effectively contest the case in Mexico (according to the claimant's expert Mr Gonzalez).
(1) The defendant is a company incorporated under the laws of Mexico;
(2) The defendant operates exclusively within the jurisdiction of Mexico;
(3) The alleged tort took place in Mexico;
(4) Much of evidence will focus on events in Mexico;
(5) Mexican law governs liability;
(6) Mexican law governs quantum;
(7) The nature of the issues and the witnesses needed to address them are set out in the particulars:
"The accident was caused by the negligence and/or breach of statutory duty of the
Defendant by its servants or agents in that it
(i) Failed to carry out any or any adequate risk assessment.
(ii) Failed to ensure that all drivers were sufficiently trained and instructed in the safe
use of the ATV before commencing the Safari In particular, failed adequately or at all to advise the Claimant and her driver (in accordance with the Owner's manual for the vehicle), that
(a) the ATV's were liable to roll over and the steps necessary to avoid or minimise the risk of the same;
(b) to minimise or avoid the risk of rollovers, it is necessary to avoid abrupt manoeuvres, sideways sliding, avoid acceleration when turning, plan for bills, rough terrain, ruts and other changes in traction and terrain; and avoid side hilling.
(8) A number of individuals who will in all likelihood to be called as witnesses by the defendant are Mexican nationals (Jarque Branguli [B346]). These include witnesses testifying about:
a. the safety briefing
b. the waiver form
c. the medical treatment in Mexico
The relevant clause of the waiver is Clause 2:
"2. RELEASE AND WAIVER OF LIABILITY. I, for myself and on behalf of my heirs, estate, insurers, successors and assigns, hereby fully and forever waive, release and forever discharge Vallarta Adventures, its owners, shareholders, parent, subsidiaries and affiliated companies and their respective officers, employees and agents ("the Released Parties") for any and all claims, liabilities of every kind or causes of action I may have or have in the future for damages for loss or damage …, losses (economic and non-economic), or expenses … arising from personal injuries including my death and/or damage to property which may, in any way, result from or arise out of, my participation in the Program, whether arising from negligence of any of the Released Parties or otherwise, to the fullest extent permitted by law."
(9) Much of the contemporaneous documentary evidence is in Mexico and in the Spanish language;
(10) The defendant's D's expert, Mr Besil, states that the Mexican courts are "well versed in the handling of injury claims";
(11) He also states that "since 2011 Mexico has consistently become a more favourable jurisdiction for claimants in personal injury cases";
(12) Mr Besil states that since the Covid pandemic, Mexico, along with many other jurisdictions, has used IT and remote hearings.
Discussion
"The governing law, which is here English, is in general terms a positive factor in favour of trial in England, because it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two."
"The place of commission is a relevant starting point when considering the appropriate forum for a tort claim. References to a presumption are in my view unhelpful. The preferable analysis is that, viewed by itself and in isolation, the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction. But, especially in the context of an international transaction like the present, it is likely to be over-simplistic to view the place of commission in isolation or by itself, when considering where the appropriate forum for the resolution of any dispute is. The significance attaching to the place of commission may be dwarfed by other countervailing factors."
"a major legal reform enacted on 10th June 2011 which included the express right of victims to a full and complete reparation of damages, they have taken major steps forward mostly in favour of the victims."
Conclusion
§VI. Disposal
(1) The claimant's application to amend the claim form and particulars of claim on the consumer contract basis is dismissed;
(2) The defendant's application to set aside the (1) order granting permission for service of out of jurisdiction, (2) particulars of claim and (3) claim form is granted;
(3) The court declares that the English courts do not have and should not exercise jurisdiction in this claim;
(4) As such, the proceedings in this jurisdiction are stayed.