In JEB Recoveries v Binstock, [2016] EWCA Civ 1008, the Court of Appeal (on appeal from the High Court, 2015] EWHC 1063 (Ch)) exhaustively reviewed relevant EU precedent for the determination of the ‘place of performance’ of a contract under Article 5(1) (now 7(1)) of the Brussels I (Recast) Regulation. Kitchin LJ first of all refuses to deal with the alleged submission to jurisdiction by Mr Binstock. The argument was made that, by making and pursuing an application for security for costs, Mr Binstock had submitted to the jurisdiction. The issue was however not raised before the High Court and therefore not sub judice at the Court of Appeal.
Mr Binstock (of casino fame) argued that the contracts at issue were not performed in England, for he himself was domiciled in Spain and the claimant in the case at issue (for most of the relevant contracts, jurisdiction was dismissed at hand) had arguably carried out his contractual arrangements largely from Paris.
Relevant CJEU precedent was C-19/09 Wood Floor Solutions the findings of which Lord Justice Kitchin helpfully summarised as follows:
- ‘…First, the place of performance must be understood as the place with the closest linking factor between the contract and the court having jurisdiction and, as a general rule, this will be at the place of the main provision of the services.
- Secondly, the place of the main provision of the services must be deduced, so far as possible, from the provisions of the contract itself.
- Thirdly, if the provisions of the contract do not enable the place of the main provision of the services to be determined, either because they provide for several places where services are to be provided or because they do not expressly provide for any specific place where services are to be provided, but services have already been provided, it is appropriate, in the alternative, to take account of the place where activities in performance of the contract have for the most part been carried out, provided that the provision of services in that place is not contrary to the parties’ intentions as appears from the contract.
- Fourthly, if the place of the main provision of the services cannot be determined on the basis of the terms of the contract or its performance, then it must be identified by another means which respects the objectives of predictability and proximity, and this will be the place where the party providing the services is domiciled.’
Based upon the place where the services have for the most part been carried out, the Court of Appeal held that JEB has no good arguable case that the place of the main provision of Mr Wilson’s services was England.
A neat application of Article 7(1) and an improved re-phrasing of the CJEU’s own rules.
Geert.
(Handbook of) EU Private International Law, Chapter 2Heading 2.2.11.1.,
