| Practice — Appeal — Permission to appeal — County court judge refusing permission to appeal but directing any appeal to be heard by Court of Appeal — Proper procedure and court for granting permission to appeal and hearing appeal — CPR r 52.14
Conflict of Laws — Jurisdiction under Council Regulation — Exclusive Jurisdiction — Offer for sale of goods on defendant’s standard terms faxed to claimant — Claimant ordering goods by fax without seeing terms — Whether exclusive jurisdiction clause incorporated into contract — Council Regulation (EC) 44/2001, art 23
7E Communications Ltd v Vertex Antennentechnik GmbH [2007] EWCA Civ 140
CA: Sir Anthony Clarke MR, Arden and Dyson LJJ: 26 February 2007
The power to transfer an appeal to the Court of Appeal in CPR r 52.14 applied only to appeals for which permission had been granted. A judge who refused to grant permission to appeal had no power under CPR r 52.14 to direct that an appeal be transferred to the Court of Appeal.
A contract signed by both parties, whether in one document or two, expressly referring to general conditions including an exclusive German jurisdiction clause which one party had not seen, incorporated the clause under art 23 of Council Regulation (EC) 44/2001.
The Court of Appeal so held, (1) allowing the appeal of the claimant, 7E Communications Ltd, against the decision of Jack J on 29 March 2006 that the High Court had no jurisdiction to grant permission to appeal or hear the appeal on 23 September 2005 from Judge Knight QC sitting in the Central London County Court (Mercantile List) who, inter alia, refused jurisdiction on the ground of an exclusive German jurisdiction clause in the contract, and (2) allowing the cross-appeal of the defendant, Vertex Antennentechnik GmbH, against the decision of Jack J that the English court had jurisdiction over the substantive appeal under art 5 of the Regulation.
SIR ANTHONY CLARKE MR, giving the judgment of the court, said that having refused permission to appeal, Judge Knight had no jurisdiction to say where an appeal was to be heard, because until the claimant obtained permission to appeal, there was and could be no appeal. Since he had refused permission to appeal, he had no power to direct under CPR r 52.14 that the appeal be transferred to the Court of Appeal. Jack J was wrong to say that r 52.14 applied both to appeals for which permission had been obtained and those for which it had not. The rule itself clearly distinguished between an appeal and an application to appeal. It was only “the appeal” that could be transferred to the Court of Appeal. Applications for permission were dealt with in CPR r 52.3. An appeal from a decision of a circuit judge in a claim which had not been allocated to a track and was not a “final” decision was to a single judge of the High Court: see Table 1 to PD52 para 2A.1. Once Judge Knight had refused permission to appeal, the only court that could give permission to appeal was the High Court. Since Rafferty J had given permission to appeal on the substantive issue of jurisdiction Jack J should have heard the appeal (which he did in the event that he was wrong on the question of appellate jurisdiction). The claimant’s case was that the English court had jurisdiction under art 5.1(b) of the Regulation on the basis that England was the place where the goods were delivered under the contract. The defendant’s case was that the parties had agreed that the German courts had exclusive jurisdiction under art 23 of the regulation. Jack J held that the English court had jurisdiction under art 5.1(b).The sole question was whether there was an agreement conferring German jurisdiction in writing. The defendant submitted that the agreement was contained in or evidenced in writing in the quotation and purchase order in which the parties expressly agreed that the contract was subject to the defendant’s general terms and conditions. The claimant denied such an agreement. Applying Salotti v RUWA Polstereimaschinen GmbH [1976] ECR 1831 and Credit Suisse Financial Products v Société Générale d’Enterprises [1997] CLC 168, first, a guarantee existed that the relevant party had “really consented to the clause” where there was an express reference to the terms and conditions which included the jurisdiction clause. It was not necessary for there to be a specific reference to the clause itself. Second, the fact that one party did not have a copy of the terms and conditions or the jurisdiction clause in his possession was not relevant. The question was whether the fact that the parties signed not one but two documents was a critical distinction. It was not. It followed that there was an agreement that the German courts had exclusive jurisdiction to settle the dispute in connection with the contract between the parties under art 23. The English court had no jurisdiction.
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