In Chester Hall Precision Engineering Limited and Services Centres Aero France , the court had to decide whether it had jurisdiction to hear a claim or whether it needed to be determined by the French court.
The claimant had issued proceedings in the English court seeking to recover some $180,000 which it alleged it had overpaid the defendant which was a company domiciled in France. The defendant argued that the English court did not have jurisdiction to deal with the claim because the goods had been supplied pursuant to its terms and conditions which contained a jurisdiction clause giving the court of Nantes exclusive jurisdiction to deal with any disputes.
The evidence before the court was that the claimant sent purchase orders to the defendant which included the following wording:
“Chester Hall Precision Engineering Limited’s standard terms and conditions of purchase apply. Copy available on request.”
On receipt of the purchase order the defendant sent back a form entitled “Accuse de Reception”, which was an acknowledgment/order confirmation. That document included wording which was translated as:
“Our general conditions of sale are shown overleaf”.
The evidence indicated that only the front page of the acknowledgement was sent to the claimant. At the hearing the defendant did not produce a copy of the document showing what was printed on the reverse. There was also no evidence from the defendant before the court which confirmed that the standard terms and conditions which had been provided to the court were those which applied at the relevant time in 2008 and 2009.
The judge found that it was not material that the claimant might not have seen the defendant’s terms and conditions. However, he was not satisfied on the evidence before him that the terms and conditions which were produced to the court and on which the defendant was seeking to rely were those which were on the reverse of the relevant forms or which were even applied generally by the defendant at the material time in 2008 or 2009. As a result the judge decided that whilst it was likely that some of the defendant’s terms and conditions would have been incorporated into the agreement with the claimant, the defendant had not established the burden of showing that the jurisdiction clause formed part of those terms. The English court therefore did have jurisdiction to deal with the claim.
As a result of the decision the defendant will have to defend a claim in a foreign jurisdiction when it otherwise would have been able to have any disputes dealt with by its home court. The case therefore serves as a reminder to keep an adequate paper trail when relying on terms and conditions which are not attached to contractual documents. It is important to be able to provide evidence of which terms applied at a particular time and to be able to produce a copy on request or face the risk as in this case that the court finds that an important clause does not apply.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.