Lloyd's Maritime and Commercial Law Quarterly


Anthony Kennedy *


253. Dooley v Castle Trust & Management Services Ltd 1

Consumer contracts—jurisdiction—trusts

The claimants were pensioners, predominantly domiciled in England and Wales. They alleged that they had been given pension transfer application forms by an unregulated intermediary (M), which operated within the jurisdiction. M was said to have been in a commercial relationship with the defendant, a Gibraltar-registered professional trustee company. The claimants argued that the defendant had breached its fiduciary duty, as well as duties owed in contract and in tort. In short, as the claimants alleged, they had begun with valuable pension rights and, because of M’s activities, had ended with simply being party to offshore pension arrangements with the defendant, invested in unregulated schemes of little or no value. Proceedings were instituted on 30 September 2020 (prior to the end of the implementation period for the UK’s exit from the EU). The judge at first instance, in response to the defendant’s application to challenge the jurisdiction of the English court under CPR Pt 11, concluded that the claimants did not have a good arguable case that the proceedings fell within Art.13(3) of the Brussels Convention 19682—concerning consumer contracts—and so decided that the courts of the defendant’s domicile had jurisdiction.
Decision: The claimant’s appeal was allowed.
Held: A party seeking to establish the jurisdiction of the English court must demonstrate that, on disputed matters relevant to the issue of jurisdiction, it has the better of the argument on the material available. For the purpose of the evidential analysis, the standard lies between proof on the balance of probabilities and the mere raising of an issue. When considering “matters relating to a contract”, Art.5 of the Brussels Convention 1968 is not a gateway to Art.13: it is not necessary to establish jurisdiction under Art.5 in order to make it out under Art.13. The existence of a trustee-beneficiary relationship does not preclude the existence of a contractual relationship between the same parties. The claimants therefore had the better of the argument on the question whether they had entered into a contract with the defendant and on the question of the proper interpretation of the scope of the contractual services provided. The English court therefore had jurisdiction.


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