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Steel J concluded that the English court had jurisdiction under
Regulation 44/2001 to hear a claim brought by the English claimant
against the Slovakian defendant. However, the claimant had made a
mistake when completing Form N510. Where permission to serve a
claim form out of the jurisdiction is not required because (as
here) the defendant is domiciled in an EU Member State (or in a
country which has signed the Brussels or Lugano Conventions), the
claimant must file with the claim form a notice containing a
statement of the grounds on which the claimant is entitled to serve
without permission (Form N510). The claimant had mistakenly not
asserted jurisdiction under the Regulation and had instead asserted
jurisdiction under the Civil Jurisdiction and Judgments Act 1982,
without specifying any relevant article. That was wrong because the
Brussels Convention (on which the Act is based) now only applies to
the French Overseas Territories and the Dutch territory of
Aruba.
Since Form N510 was to be treated as a nullity, the leave of the
court was required for the claim form to be served (CPR
r6.34(2)(b)). Steel J held that there is no requirement for the
claimant to set out in the claim form itself the specific articles
in the Regulation relied upon and the basis for invoking them. In
this case, the claimant's approach to jurisdiction had been
"thoroughly confused". Despite that, and the defects in
Form N510, he held that the claimant was entitled to rely on the
relevant provisions of the Regulation. He reached this decision
based on the following grounds:
(1) The regulation is the successor to the Brussels Convention;
(2) the terms of the Regulation are in all material respects the
same as the Brussels Convention; (3) the defendant had sustained no
prejudice (other than potential costs' implications); and (4)
the court has a discretion to permit service even in the absence of
Form N510
British Bankers' Association, R v The FSA Administrative
court rejects BBA arguments that FSA guidance on PPI complaints
handling was unlawful
The British Bankers' Association (the "BBA")
challenged the lawfulness of a Policy Statement published by the
FSA in 2010. This statement included a "package of
measures" for dealing with issues arising out of complaints
that customers had been mis-sold payment protection insurance
policies. The package included guidance on how complaints should be
handled and the basis on which they should be decided.
The BBA alleged that the statement was unlawful because it
treated the Principles (which are general statements of the conduct
required of the providers of financial services) issued by the FSA
as giving rise to obligations owed by firms to customers, leading
to compensation being payable for their breach, when those
Principles are not actionable in law. An alternative argument was
that since the FSA has made other specific rules governing the
manner in which PPI policies are sold, it was unlawful for the FSA
to provide in its Policy Statement that a customer might be
entitled to redress by reference to Principles which conflicted
with or augmented those specific rules.
The BBA's arguments have been rejected by Ouseley J. Rules
which are not actionable can still give rise to obligations as
between firms and customers. On the BBA's second argument, the
judge said that "In my judgment, and fundamentally, the BBA
analysis rather puts the issue the wrong way round when it contends
that the Principles cannot be used to contradict or augment the
specific rules....The Principles are best understood as the ever
present substrata to which the specific rules are added. The
Principles always have to be complied with. The specific rules do
not supplant them and cannot be used to contradict them. They are
but specific applications of them to the particular requirements
they cover. The general notion that the specific rules can exhaust
the application of the Principles is inappropriate. It cannot be an
error of law for the Principles to augment specific
rules".
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