Chelsea Roach v Vallarta Adventures S.A de C.V

In Chelsea Roach v Vallarta Adventure S.A. de C.V., the Tort Gateway and Consumer Contract Gateway were invoked as grounds for serving proceedings outside of the jurisdiction. Deputy Judge Dexter Dias KC issued the preliminary issues judgment on 10 September 2023 (handed down on 30 October 2023), which confirmed that, for the Consumer Contract Gateway to operate, there must be a sufficient connection between a foreign entity and the United Kingdom.

Background 

The Claimant, Chelsea Roach, is a British citizen who went on holiday to Puerto Vallarta, Mexico, in September 2019. The Defendant, Vallarta Adventure S.A. de C.V., is a tourism company incorporated and operating in Mexico. While on her holiday in Mexico, Ms Roach and a friend booked the Defendant’s ‘All Terrain Safari’ (the “Safari”) through TUI, an international tourism agency. The Safari was to take place on board of an All-Terrain Vehicle (“ATV”). Before the Safari, the Defendant requested that Ms Roach and her friend signed a Waiver of liability. Among other things, this Waiver contains an exclusive jurisdiction clause in favour of the courts in Puerto Vallarta, Mexico. During the Safari, whilst Ms Roach’s friend was driving, their ATV tipped over causing injuries to Ms Roach resulting in the above elbow traumatic amputation to her right arm (the “Accident”).

Ms Roach commenced proceedings in tort against the Defendant for breach of statutory duty of care, negligence and strict liability in the High Court of Justice. The Defendant challenged the jurisdiction of the English courts. Ms Roach subsequently applied to amend her claim to expressly plead a claim in contract, for breach of contractual duty of care, as an alternative to her claim in tort. The Defendant challenged the Claimant’s application.

In summary, Ms Roach argued that the English courts have jurisdiction to hear the claim on the following grounds:

(a) The Defendant is a party to the Waiver, which qualifies as a “consumer contract” for the purposes of s.15B(1) of the Civil Jurisdiction and Judgments Act 1982 (“CJJA”). This allows the Claimant to serve proceedings on the Defendant outside of England without the need for court permission pursuant to CPR r 6.33(2)(b)(ii) and CPR PD 6B, paragraph 3.1(4A)(b) (the “Consumer Contract Gateway”);

(b)  Although the Accident took place in Mexico, Ms Roach sustained damage within England. This allows her to serve proceedings on the Defendant outside of England subject to court permission pursuant to CPR rules 6.36, 6.37 and Practice Direction 6B, paragraph 3.1(9)(a) (the “Tort Gateway”); and

(c) The exclusive jurisdiction clause within the Waiver is not valid under Mexican law. 

The Defendant, on the other hand, argued that the English courts do not have or should not exercise jurisdiction to hear the claim because:

(a) The Waiver does not qualify as a “consumer contract” within the definition  in s.15E(1)(c)(ii) of and pursuant to s.15B(1) of the CJJA as, on the evidence, the Defendant does not “by any means, direct” its activities to the United Kingdom. 

(b) The exclusive jurisdiction agreement within the Waiver is valid under Mexican law and is evidence of the parties’ agreement that the venue for resolving any dispute arising from the Safari would be the courts of Puerto Vallarta, Mexico. The existence of an exclusive jurisdiction agreement creates a prima facie presumption that the English courts should exercise their discretion to grant a stay on a given case unless strong cause for not doing so is shown.¹

(c) England is not the forum conveniens because, amongst other reasons, the majority of the evidence is located in Mexico; the law governing the dispute would be Mexican law; and, since this is a claim partly in tort, there is a presumption that the place where the tort occurred will be the appropriate forum to determine the dispute.² 

Deputy Judge Dexter Dias KC heard the parties’ submissions at a full-day hearing on 9 June 2023 and issued the judgment on 10 September 2023 (handed down on 30 October 2023).  

Summary of the decision

Deputy Judge Dexter Dias KC identified two primary issues to be addressed:

(a) Consumer Contract Gateway: Should the Waiver be deemed a “consumer contract” for the purposes of s.15B(1) of the CJJA, and thus can the Claimant serve out of jurisdiction without seeking the court’s permission by reason of the CPR? 

(b) Tort Gateway: Should the court nevertheless be seized with jurisdiction due to the operation of the tort gateway? 

In reaching a conclusion on issue (a), Deputy Judge Dexter Dias KC provided some welcomed guidance on the meaning of “directing activities to a country” within s.15E(1) of the CJJA, especially in the context of tourism business and the expansion of the internet.³ By referencing  to previous case law⁴ and on the facts, the Judge concluded that the Waiver cannot be deemed a “consumer contract” within the definition provided in s.15E(1)(c) (ii) and for the purposes of s.15B(1) of the CJJA. The Defendant could not be considered as “by any means” directing its commercial activities to the United Kingdom because:

(i) The fact that the Defendant’s website is accessible in the United Kingdom is irrelevant. Such mere accessibility is part of the reality of the expansion of the internet.

(ii) Only a small percentage of British tourists form part of the Defendant’s clientele. Their disappearance would have very little impact on the Defendant’s commercial operation.

(iii) The true focus of the Defendant’s commercial operation is Mexico and North America (especially the USA). This is evident from the Defendant’s marketing strategy and several factors pointed out from the Defendant’s website :(i.e., pricing in USD; North American spelling of English words; website domain being “.com”; telephone numbers specifically provided for North American clients; North American TripAdvisor reviews etc.).

(iv)  Although the Safari was booked via TUI, this was due to a Mexican service agreement between TUI Mexico and the Defendant. The Claimant could have not booked the Defendant’s services through TUI in the United Kingdom. 

“By any means, directs” does not entail a negligible, trivial or purely very low-level incidental connection between a trader and a particular country.⁵  There must be sufficient connection, which was not established in this case. Therefore, Ms Roach could not bring the Defendant under the English courts’ jurisdiction on the basis of the Consumer Contract Gateway. 

In respect of issue (b), Deputy Judge Dexter Dias KC held that although Ms Roach’s claim benefits from the Tort Gateway, the English courts do not and should not exercise jurisdiction in these circumstances because:

(i) The exclusive jurisdiction clause settles jurisdiction in favour of the courts of Puerto Vallarta, Mexico and, based on the evidence on Mexican law presented by both parties, said clause is likely to be valid under Mexican law. On this basis, there is a presumption that the English courts will refuse to exercise their jurisdiction unless strong cause for not so doing is shown. Deputy Judge Dexter Dias KC considered this to constitute “a formidable obstacle"⁵ for Ms Roach, who failed to show strong contrary reasons not to abide by said presumption.

(ii) The Defendant showed that Mexico is a clearly more appropriate forum than England to try the case, and that it is suitable for the interests of all parties and the ends of justice. This is because, among other factors: the Accident took place in Mexico; Ms Roach was medically treated in Mexico; the applicable law governing the case is Mexican law; most relevant witnesses in respect to liability are located in Mexico and Ms Roach would be eligible for legal aid in Mexico. Ms Roach, on the other hand, failed to show how, due to specific circumstances and how it would fairly impact her, the English courts should order for the claim to be heard in this jurisdiction. 

In light of the above, Deputy Judge Dexter Dias KC confirmed that the natural and appropriate forum to try this case is Mexico. He therefore declared that the English courts do not have and should not exercise jurisdiction in this claim and that the claim before the English courts is to be stayed.

Comments

Deputy Judge Dexter Dias KC’s judgment provides some welcome guidance on the operation of the recently introduced Consumer Contract Gateway and strikes the balance between the nature of tourism companies’ modus operandi and British citizens’ right of access to justice in England. It would therefore be artificial and far reaching for the English courts to consider that any consumer contract entered into by a British citizen with foreign tourism companies, while travelling abroad, could result in the automatic and non-discretionary exercise of the English courts’ jurisdiction over said companies.

[1] Owners of Cargo Lately Laden on Board the Ship or Vessel Eleftheria v The Eleftheria (Owners) (The Eleftheria) [1969] 2 WLR 1073 at p.1077B; Donohue v Armco Inc [2002] 1 All ER 749 at [24]-[25].

[2]Under English law this establishes a prima facie presumption for the claim to be heard in Mexico. See VTB Capital Plc v Nutritek International Corp [2013] 2 AC 337 at [51].

[3] See paragraphs [27-36] of the judgment.

[4] See e.g., Pammer v Reederei Karl Schluter GmbH [2011] 2 All ER (Comm) 888.

[5] Paragraph [35] of the judgement.

[6] Paragraph [75] of the judgement.