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Agreeing To Jurisdiction Online - Whether You Like it or Not

DATE: 23.06.2011


In February 2010, the High Court in Ryanair Limited v Billigfluege.De GmbH considered the scope of Article 23 of Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters (the “Regulation”), which allows Member State domiciled parties to agree which courts will have jurisdiction.

The defendants ran a flight price comparison website, which the plaintiff claimed breached its website’s Terms of Use (the “Terms”), in that it took information from the plaintiff’s site, and provided it to its users free of charge. The Terms gave the Irish courts exclusive jurisdiction in respect of any dispute. The defendant claimed that the Terms were unilaterally imposed conditions, lacking contractual effect and that, as such, the plaintiff could not rely on Article 23(1) of the Regulation to bring Irish proceedings. The defendant relied on Article 2 of the Regulation which provides that a defendant should be sued in its own domicile.

In analysing whether Article 23 applied, the court had to be satisfied that a contract existed between the parties, comprising an offer, acceptance and consideration. It decided that the plaintiff, through its website, offers information for use, subject at all times to the Terms. The defendant accepts the offer of information in systematically accessing the Ryanair website and reproducing the information on its own. Further, in the court’s view, the provision of information by the plaintiff, subject at all times to the Terms, constituted a sufficient act of consideration. The Terms therefore constituted a contractual document and the exclusive jurisdiction clause was therefore binding.

This finding was supported by another point of law from Ryanair Ltd. v Bravofly and Travelfusion Ltd, which states that, a contract in which a jurisdiction clause is located may be held to be voidable, but not the jurisdiction agreement within it. The court found that it was not necessary, in this application, for the plaintiff to show the existence of a valid agreement, once it could show assent to jurisdiction. This was shown by the manner in which the defendant used the website.The court took into consideration the fact that the parties were both commercial entities, and that the Terms were clear and unambiguous. The exclusive jurisdiction clause was held to be binding, and the defendant’s application for an order dismissing the plaintiff’s claim for want of jurisdiction was dismissed.

Lisa Broderick


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