Ang(er) over jurisdiction challenge: High Court seeks to clarify whether speculative investment by a private individual is a business or consumer activity

Failed jurisdiction challenge against a private individual making speculative currency transactions on the basis that she could be considered a consumer under the Recast Brussels Regulation (Romana Ang v Reliantco Investments Limited [2019] EWHC 879 (Comm))

The Facts

The defendant, Reliantco, was a Cypriot company offering financial products and services through its online trading platform, UFX. The claimant, Ms Ang, was a person of substantial wealth who invested in Bitcoin futures on a leveraged basis through the UFX platform.

Ms Ang was not, at the relevant time, employed or earning in any self-employed trade or profession (save that there was an issue between the parties whether her activity as a customer of Reliantco via the UFX platform was to be classified as such). She had no education or training in cryptocurrency investment or trading. However, Ms Ang's husband, Mr Wright, had amassed a large cache of Bitcoin through his early investment in Bitcoin mining and identifies himself publicly as the inventor/co-inventor of Bitcoin. (The judge was not required to consider whether this claim was true.)

Ms Ang opened her account with Reliantco in January 2017 in order to invest c. US$200,000 from her personal funds, being the proceeds of the sale of a former home and her interest in an Australian next generation banking business. At the time of opening the account, Ms Ang was required to click a button to indicate that she accepted Reliantco's terms and conditions. These included an exclusive jurisdiction clause in favour of the courts of Cyprus.

The underlying claim arose from the alleged blocking of access to Ms Ang's account by Reliantco in August 2017 and its subsequent refusal to allow her to withdraw funds from the UFX platform. Ms Ang alleged that Reliantco should compensate her for the loss of her open Bitcoin positions, which she claimed at August 2017 equated to c. US$1.1million and at the time of commencing the legal proceedings would have been in excess of US$3million.

Ms Ang issued proceedings in England, her country of domicile. Reliantco challenged the jurisdiction of the English court on the basis of the exclusive jurisdiction clause and Article 25 of the Recast Brussels Regulation. Ms Ang claimed that the exclusive jurisdiction clause was ineffective and did not require her to bring the claim in Cyprus, either because she was a "consumer" within the meaning of section 4 (Articles 17 to 19) of the Recast Brussels Regulation, or because the jurisdiction clause was not incorporated into her contract with Reliantco in such a way as to satisfy the requirements of Article 25. Ms Ang claimed that she received hyperlinks to Reliantco's terms and conditions (that included the exclusive jurisdiction clause) but that they did not work, such that they took her to an error page.

Ms Ang also claimed under the Data Protection Act 1998 and the GDPR, seeking an order for the rectification, destruction, erasure or blocking of her personal data held by Reliantco.

The Recast Brussels Regulation

The Recast Brussels Regulation on jurisdiction and enforcement of judgments in civil and commercial matters applies to all proceedings commenced in EU/EFTA countries on or after 10 January 2015.

Under Article 25 of the Regulation, where the parties have agreed that a court of a member state shall have jurisdiction in relation to any disputes that occur between the parties, that court shall have jurisdiction.

Articles 17 to 19 of the Regulation relate to jurisdiction over consumer contracts. A consumer contract is expressed as a contract concluded by a person (the consumer) for a purpose which can be regarded as being outside his or her trade or profession. Three types of contract are covered, as set out in Article 17(1)(a)-(c)).

Article 18(1) provides that "a consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled, or regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled".

The jurisdiction provisions are designed to protect the consumer, who is viewed in these situations as the weaker party. A jurisdiction clause that is inconsistent with these provisions is generally rendered ineffective.

Decision

Jurisdiction

The judge rejected the jurisdiction challenge by Reliantco.

In considering the purpose of the investments, the judge held that the contract fell within Article 17 of the Recast Brussels Regulation. The purpose of the investments was not a business activity but a private consumption need. The fact that Ms Ang was wealthy and had some knowledge of the investment did not preclude her from being a consumer. Ms Ang was therefore entitled to commence proceedings in her country of domicile, despite the exclusive jurisdiction clause.

The case law on the definition of a consumer is extensive and in determining whether Ms Ang was a consumer, the judge cited the cases of Shearson[1], Benincasa Srl[2] and Apostolakis[3]. The judge spent time analysing the decision in Apostolakis, a case where the defendants were wealthy private individuals who entered into forward foreign exchange transactions with the claimant bank. The contracts were entered into outside of their professions and it was therefore held that they were consumers. However, when the same litigation came before the Greek Courts[4] it was held that the individuals were not consumers.

The judge noted, with particular reference to Apostolakis, that there was conflicting case law in this area. Further, he explained that there was currently no ECJ/CJEU judgment on whether contracts entered into by wealthy private individuals for the purpose of investing their wealth are consumer contracts within section 4 of the Recast Brussels Regulation. The CJEU heard a reference from the Czech Republic[5] earlier this year in relation to whether Article 17(1) of the Recast Brussels Regulation applies to an individual who engages in trade on the international currency exchange market through a third party professionally engaged in that trade. Judgment is awaited.

Effective Jurisdiction Clause

The judge (obiter) considered that had the jurisdiction challenge been well founded, the exclusive jurisdiction clause would have been effective under Article 25 of the Recast Brussels Regulation. There was evidence that the terms and conditions were available during the relevant period, that Ms Ang had been referred to them on occasion and had had the opportunity to request them.

Data Protection Claims

In obiter the judge also considered that since the jurisdiction challenge had failed, so did the challenge by Reliantco to the jurisdiction of the data protection claims under the Data Protection Act 1998. These claims fell within the scope of the Recast Brussels Regulation as they were civil/commercial matters not excluded by Article 1(2) and arose out of Ms Ang's contract with Reliantco, meaning that they fell within the wider decision on jurisdiction explained above. However, the judge concluded (again, obiter) that had Reliantco's challenge to jurisdiction been well founded (ie it had established jurisdiction in Cyprus), the English Court would have had jurisdiction to consider the claim under the GDPR for an order for rectification, destruction, erasure or blocking of her personal data pursuant to Articles 16 – 17 of the GDPR. Under Article 79 of the GDPR Ms Ang would be entitled to bring proceedings in England against Reliantco as data controller or processor because she is habitually resided in the country (notwithstanding Article 25 due to Article 67 of the Recast Brussels Regulation).

Comment

This judgment demonstrates that the question of whether a private investor is a consumer for the purposes of the Recast Brussels Regulation remains unclear and will often turn on the facts. With a lack of clarity in the case law, it demonstrates the need for the issue to be considered at a higher level.

This judgment also provides some interesting obiter commentary on the jurisdiction over data protection claims.

[1] Shearson Lehman hutton Inc v TVB [1993] (Case C-89/91) EU:C:1993:15

[2] Benincasa Srl v Dentalkit [1997] (Case C-269/95) EU:C:1997:377

[3] Standard Bank London Ltd v Apostolakis [2002] CLC 933

[4] Standard Bank London Ltd v Apostolakis [2003] ILPr 29

[5] Petruchova v Fibo Group Holdings Ltd (Case C-208/18)