Finance litigation update - July 2022

FINANCE LITIGATION UPDATE – JULY 2022 13 of material obtained through disclosure and in crossexamination. Mr Khalifeh's habitual residence Foxton J upheld the Bank's argument that Mr Khalifeh did not have his habitual residence in England and Wales at the relevant time, namely October 2016, when the personal account was opened. Although he had formed an intention to move his habitual residence to England at this time, and had begun to take the necessary steps, he had not yet acquired a habitual residence in the UK. Foxton J rejected Mr Khalifeh's argument that the relevant time was in fact June 2019, when the contract was amended, describing the argument that the applicable law should be assessed at the variation date as a "recipe for chaos"4. Had Foxton J agreed with Mr Khalifeh, it would have found that he was habitually resident in England by June 2019 (although, for the reasons set out above, this would not have changed the outcome of the case). Was this a contract for the supply of services exclusively outside of England and Wales Finally, Foxton J did not accept the Bank's argument that the services to be provided by the Bank under the contract in question were to be received exclusively outside the UK, such that Article 6(4)(a) applied. It was, for example, possible for Mr Khalifeh to make withdrawals from the personal USD account using a debit card and to give remote instructions for the funds to be transferred to other accounts all without leaving his place of habitual residence. 4 The judge accepted that the position might be different where the variation in question amounted to a complete restatement of the Practical implications This judgment serves as a reminder of the importance of expressly specifying the applicable law in a contract and the principles to be applied in the absence of such a choice. Its conservative analysis of when a business will be deemed to be directing its activities to other jurisdictions is also likely to be welcomed by financial institutions and other professional service providers who deal with customers in England & Wales from outside the jurisdiction. While the question is clearly highly factsensitive, the judgment confirms that consumer contracts can be governed by the laws of a country which is not the one in which the consumer has his or her habitual residence. Ben Sigler, Chris Pettett and Harriet Campbell parties' relationship but considered that the application of Article 6 in such a situation should be dealt with in a case in which it arises.