In Coys of Kensington Automobiles Ltd. v. Pugliese  EWHC 655 (QB), Ramsey J gave detailed guidance on when sufficient consensus is established to make a jurisdiction agreement binding under Article 23(1)(a) of the Judgments Regulation (EU Reg. 44/2001). He held that the test is objective, based on the document, not the intellectual or linguistic capacity of the party sought to be bound.
Whilst holidaying in Monaco, the Defendant, an Italian resident who had almost no understanding of English, visited an auction exhibition room. She left her contact details on a form printed in English which she signed and which referred inconspicuously to terms and conditions in a separate document (also in English) containing an English jurisdiction clause, which the Defendant said she did not receive. The Defendant returned to Italy before the auction took place and claimed not to have participated in the auction. The Defendant was then sued in England for having allegedly made the winning bid by telephone and failing to pay.
Master Foster had found that there was insufficient consensus for the English courts to take jurisdiction. Ramsey J allowed the Claimant auctioneers' appeal, holding in particular that "to make the question of consensus, in a case based on a document, depend on the intellectual or linguistic capacity of a party would cause great uncertainty which an objective analysis is intended to overcome" (para. 40). "As a general principle, a party who completes and signs a document cannot rely on the fact that they have not read the document or have not understood it. Their acts are generally viewed objectively" (para. 38).
The judgment is here.
Gerard Rothschild appeared for Ms Pugliese