Sheikh Mohammed Omar Kassem Alesayi v Bank Audi SAL [2026] EWCA Civ 551

[2026] EWCA Civ 551Case No CA-2025-001336
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Mr Justice Constable
KB-2023-001038
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2026
Before
LORD JUSTICE PETER JACKSONLORD JUSTICE POPPLEWELLLORD JUSTICE ZACAROLI
Between
SHEIKH MOHAMMED OMAR KASSEMRespondent/ClaimantALESAYIRespondentBANK AUDI SALAppellant/Defendant
Ian Wilson KC and Ryan Ferro (instructed by Dechert LLP) for AppellantBobby Friedman KC and Caspar Bartscherer (instructed by Bryan Cave Leighton Paisner LLP) for RespondentHearing Hearing date : 28 April 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on May 8 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This appeal raises the question: what changes to a consumer contract are sufficient to mean that a new contract is “concluded” for the purposes of jurisdiction conferred by sections 15B and 15E of the Civil Jurisdiction and Judgments Act 1982 (‘the CJJA’), which were introduced following Brexit to adopt the jurisdictional provisions of Articles 17 to 19 of Regulation (EU) No 1215/2012 (‘the Recast Regulation’)?[2]The claimant (‘Sheikh Alesayi’) is a Saudi Arabian national, and since late 2003 a British citizen. In 1994 he opened an account with Banque Saradar SAL (‘the Bank’), a Lebanese bank headquartered in Beirut. In 2004 the Bank was acquired by the defendant, Bank Audi SAL, also a Lebanese bank, following which it underwent name changes, most recently to Audi Private Bank SAL. In December 2020 the defendant merged with the Bank, the effect of which was that under Lebanese law the defendant thereby succeeded to all the rights and obligations of the Bank. The claim is for an order that the defendant comply with Sheikh Alesayi’s instruction to transfer the full balance held in eight of his accounts, totalling more than US$ 24 million, to an account in Geneva.[3]Sheikh Alesayi brought his claim here as a consumer claim relying on sections 15B and 15E of the CJJA. They confer jurisdiction on the English court if the banking contract was concluded at a time when Sheikh Alesayi was domiciled in the United Kingdom and the Bank was carrying out relevant activities in or directed to the United Kingdom. Notwithstanding his wealth, it is common ground that he qualifies as a consumer under those provisions.[4]The defendant contends that the contract was concluded in 1994 when the account was opened with the Bank. Sheikh Alesayi contends that the contract was concluded in November 2016 when new terms were signed and agreed. Mr Justice Constable (‘the Judge’) decided this issue in favour of Sheikh Alesayi. The defendant appeals with leave of Phillips LJ.[5]The issue of when the contract was concluded is determinative of jurisdiction because it was common ground that in 1994 the Bank was not then carrying out relevant activities in or directed to the UK; whereas on the Judge’s unappealed findings, there is a good arguable case that it was doing so in November 2016, and that Sheikh Alesayi was domiciled in England at that time.

The facts in more detail

[6]Sheikh Alesayi gave an address in Beirut in 1994 when he opened a passbook savings account with the Bank. The contract opening form comprised a two-page document in French, which was one of the operating languages of the Bank at the time, each page bearing the title (in translation) “LETTER CONTRACT FOR THE OPENING OF A SAVINGS ACCOUNT”. The first page recorded Sheikh Alesayi’s personal details and the account number 204825. The second page contained 14 unnumbered paragraphs containing terms which were expressed to govern the passbook savings account (‘the 1994 Terms’). They mostly concerned use of the passbook and were only apposite to a passbook savings account.[7]The evidence in the witness statement of Mr Ghazaleh, an officer of the defendant who was not at the Bank at the time, based on what he was told by someone who was, is that it was the practice of the Bank in those days to allow a customer to open a range of different accounts, such as a current account, once they had signed an agreement to open another account. He says that he believes that that is what happened in the case of Sheikh Alesayi and that the Bank opened a number of other accounts for him at the same time, including a current account. Sheikh Alesayi did not take issue with this in his responsive evidence. It is supported by documentation available from 1997 and 2004 in relation to the use of “Allobank”, a facility introduced by the Bank to allow telephone banking. Those documents recorded that by 1997 Sheikh Alesayi held eight accounts, with a ninth added in 2004, each with an account number 204825 followed by an individual suffix. There is no evidence about what type of accounts they were, but the parties suggested that they were likely to be current and deposit accounts in different currencies. The 1994 Terms did not purport to apply to these or any other accounts. Accordingly, the contractual banking relationship in relation to all the accounts save the passbook savings account was not governed by any express terms, but rather by whatever terms would be imposed by the governing law of the contract, then Lebanese law.[8]On 19 February 2009 (by which time the Bank had been acquired by the defendant), Sheikh Alesayi completed an updated Know Your Client (‘KYC’) form with the Bank. Neither side relied upon this as materially affecting the contract concluded in 1994.[9]On 25 November 2016 Sheikh Alesayi signed a suite of new terms in nine separate documents, each in an Arabic and English version, those now being the Bank’s two operating languages (‘the 2016 Terms’). He signed some in the Arabic version, some in the English version and some in both. They comprised the following.(1) General Account Opening Terms of Business (‘the General Terms’); this was a five-page document which included a provision that all sub-accounts were to be treated as part of a single account, and set out detailed provisions applicable to many aspects of operating all the accounts. It provided for Lebanese law as the governing law, including rules regulations and circulars issued by the Central Bank of Lebanon; and for a one-sided exclusive Beirut jurisdiction clause in favour of the Bank.(2) Savings Account Opening Letter Agreement; this two-page document applied only to a passbook savings account.(3) Application Form to Open an Account; this applied to an account whose nature is not entirely clear, save that a ticked box identified that it was to be denominated in US dollars. It largely contained customer information, rather than applicable terms, but with an acknowledgment that the customer had received a copy of the Bank’s “Warning on Special Risks Inherent to Securities Trading and other Investments”.(4) Portfolio Account Terms of Business (‘the Portfolio Terms’); this was an 11-page document with detailed clauses applicable to a portfolio account, by which the customer might choose to make a wide range of investments comprising, for example, securities, equities, commodities or derivatives, as well as cash, in respect of which the Bank would provide services including execution, custody, account administration and such other services as might be agreed with the client from time to time.(5) Agreement for Forward and Spot Foreign Exchange and Currency Option Transactions (‘the FX Terms’); this was a 7-page document with detailed clauses governing FX and currency option transactions, on an execution basis, with provision for margin deposits, pledges of assets as security, and events of default (including cross-default) amongst other detailed provisions.(6) List of Fees and Charges; this was a three-page document identifying fees for over 70 different types of transaction which the Bank might undertake for a customer.(7) List of Customer Rights and Duties; this was a one-page document expressed in clear lay person’s language and said to be an excerpt from a Central Bank Circular, which contained potentially important terms applicable to the banker/customer relationship generally on both sides, for example in relation to provision of information, and retention of records.(8) Know Your Customer (Individual) Form.(9) Consent to be Classified as a Professional Client (‘the Professional Client Consent’); this one-page document enabled the Bank to treat Sheikh Alesayi as a professional client under the Lebanese Capital Markets Authority Regulation for the purpose of pursuing Securities Business, dispensing with the need for customer risk warnings and investment suitability advice etc.[10]Mr Ghazaleh’s witness statement says that Sheikh Alesayi signed the 2016 Terms as part of a routine file review, when a member of the compliance team noticed that Sheikh Alesayi had not signed updated account documentation since the account was opened in 1994. He continues:
“This was not unusual and was simply part of [the Bank’s] attempts to maintain up to date documentation for its customers, as any bank would. Although the contractual documentation and KYC were updated by the signature of these further documents in 2016, this did not create a new bank account. The Claimant’s funds remained in the Account [Mr Ghazaleh had previously defined ‘Account’ as account number 204825, allocated when the passbook savings account was opened in 1994 and to which sub-accounts were added by adding suffixes to this account number for any subsequent accounts, for instance current accounts, savings accounts and accounts in different currencies].”
[11]The substantive dispute between the parties arises against the background of the liquidity crisis of the Lebanese Central Bank, following the nationwide political unrest in the autumn of 2019, and its consequent effect on the availability of foreign currency to Lebanese banks. It is alleged in the Particulars of Claim attached to the Claim Form issued on 22 February 2023 (‘the P/C’) that on 22 August 2022 Sheikh Alesayi had made a request for the transfer of some US$ 24 million in the eight US dollar accounts he then held with the Bank to his account at Union Bancaire Privée (UBP) and seeking specific performance and/or damages for failure to comply. The P/C acknowledged that at that stage he did not have a copy of the applicable terms and conditions. The contractual right to such a transfer (defined in the P/C as the “International Transfer Right”) was based on Lebanese law imposing such an obligation by way of custom and/or specific provisions of the Lebanese Code of Obligations and Contracts; and on the inference that the Bank’s terms and conditions would be materially similar to those put before the Court in a dispute between the defendant and another customer in Manoukian v Société Générale de Banque au Liban SAL and Bank Audi SAL [2022] EWHC 669 (QB), in which Picken J had held that as a matter of construction they conferred such a right. In the course of the hearing before the Judge, Sheikh Alesayi served draft amended Particulars of Claim (for which

the Judge subsequently gave leave to amend) which relied on some of the 2016 Terms as follows:

“The International Transfer Right arises from the contractual terms of the 2016 Contract. In particular, Sheikh Alesayi relies on the following terms of the 2016 Contract: i. Clauses 2 and/or 3 of the General Terms, and/or clauses 3.7, 4.1 and/or 4.5 of the Portfolio Terms limit the Bank’s liability for delayed or non-execution of transactions (including transfers) in certain limited circumstances. None of the limitations there identified are applicable to the Transfer Request (as defined in paragraph 7 below). As a matter of construction, these specific limitations are the only limitations applicable, such that the Bank is required to execute international transfers, where these limitations do not apply (subject to an implied term allowing for compliance verification). ii. Clauses 2 and 16 of the General Terms and clause 4.5 of the Portfolio Terms explicitly contemplate Sheikh Alesayi using his accounts for the purpose of transactions in and/or to jurisdictions outside of Lebanon.” i. Clauses 2 and/or 3 of the General Terms, and/or clauses 3.7, 4.1 and/or 4.5 of the Portfolio Terms limit the Bank’s liability for delayed or non-execution of transactions (including transfers) in certain limited circumstances. None of the limitations there identified are applicable to the Transfer Request (as defined in paragraph 7 below). As a matter of construction, these specific limitations are the only limitations applicable, such that the Bank is required to execute international transfers, where these limitations do not apply (subject to an implied term allowing for compliance verification). ii. Clauses 2 and 16 of the General Terms and clause 4.5 of the Portfolio Terms explicitly contemplate Sheikh Alesayi using his accounts for the purpose of transactions in and/or to jurisdictions outside of Lebanon.”
[12]This reliance on the 2016 Terms in the Amended P/C was in addition to the Lebanese law basis previously pleaded, which was retained.[13]On 19 April 2023 Sheikh Alesayi obtained an order for service of the Claim Form by an alternative method, namely by email. On 25 July 2023 the Bank made a CPR Part 11 application disputing the jurisdiction of the Court and seeking to set aside the order permitting service by the alternative method. Those applications were heard over three days in April 2025 by the Judge, who in a Judgment dated 30 April 2025 (‘the Judgment’) resolved a range of issues including issues as to Sheikh Alesayi’s domicile and the activities of the Bank. The only issue which is the subject matter of the appeal is whether the contract was concluded in 1994 or 2016.

The Statute

[14]Sections 15B and 15E of the CJJA provide as follows:
“15B. — Jurisdiction in relation to consumer contracts (1) This section applies in relation to proceedings whose subject-matter is a matter relating to a consumer contract where the consumer is domiciled in the United Kingdom. (2) The consumer may bring proceedings against the other party to the consumer contract:- […] (b) in the courts for the place where the consumer is domiciled (regardless of the domicile of the other party to the consumer contract). 15E. — Interpretation (1) In sections 15A to 15D and this section – “consumer”, in relation to a consumer contract, means a person who concludes the contract for a purpose which can be regarded as being outside the person's trade or profession; “consumer contract” means […] (c) a contract which has been concluded with a person who— (i) pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled, or (ii) by any means, directs such activities to that part or to other parts of the United Kingdom including that part, and which falls within the scope of such activities. […] (2) In determining any question as to the meaning or effect of any provision contained in sections 15A to 15D and this section— (a) regard is to be had to any relevant principles laid down before [11pm on 31 December 2020] by the European Court in connection with [the Brussels Convention] or [the Recast Regulation] and to any relevant decision of that court before [11pm on 31 December 2020] as to the meaning or effect of any provision of [that Convention or Regulation] and (b) without prejudice to the generality of paragraph (a), the expert reports relating to [the Brussels Convention] may be considered and are, so far as relevant, to be given such weight as is appropriate in the circumstances.” “consumer”, in relation to a consumer contract, means a person who concludes the contract for a purpose which can be regarded as being outside the person's trade or profession; “consumer contract” means […] (c) a contract which has been concluded with a person who— (i) pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled, or (ii) by any means, directs such activities to that part or to other parts of the United Kingdom including that part, and which falls within the scope of such activities. […] (a) regard is to be had to any relevant principles laid down before [11pm on 31 December 2020] by the European Court in connection with [the Brussels Convention] or [the Recast Regulation] and to any relevant decision of that court before [11pm on 31 December 2020] as to the meaning or effect of any provision of [that Convention or Regulation] and (b) without prejudice to the generality of paragraph (a), the expert reports relating to [the Brussels Convention] may be considered and are, so far as relevant, to be given such weight as is appropriate in the circumstances.”
[15]It is common ground that under these provisions jurisdiction for a claim by the consumer in the UK is established if:(1) the consumer is domiciled in the UK at the time proceedings are commenced (s. 15B(2)(b) and see mBank S.A. v PA (Case C-98/20) [2020] I.L.Pr 37); and(2) the subject matter of the proceedings “relates to” a contract in respect of which at the date the contract was “concluded”: (a) the consumer was domiciled in the UK; and (b) the other party was (i) pursuing commercial or professional activities in the part of the United Kingdom in which the consumer was domiciled, or directing commercial or professional activities to that part or to other parts of the United Kingdom including that part; and (ii) in either case the contract falls within the scope of such activities.[16]The second of the two activity requirements (“directing … activities ”) is intended to cover activity which is not taking place in the UK, such as online activity from a website operated outside the UK.[17]As this Court explained in Soleymani v Nifty Gateway LLC [2022] EWCA Civ 1297 [2023] 1 WLR 436 at [55]-[56], sections 15B to E of the CJJA were enacted in the context of Brexit and were intended to adopt and retain, but not expand, the jurisdictional rules applicable to consumer contracts contained in Articles 17 to 20 of the Recast Regulation. Accordingly, these statutory provisions of the CJJA must be interpreted to give them the same meaning as they bore in the identical provisions in the Recast Regulation. It follows that the issue in this case of when a consumer contract is “concluded” is not a matter for the application of domestic law principles of statutory construction, and still less for the application of any domestic law principles of whether and when changes to contract terms are to be treated as the conclusion of a new contract. Rather, the question of when a contract is to be treated as concluded where there is a change to an existing contract is an autonomous EU law question. This is put beyond doubt by s. 15E(2) which provides that regard is to be had to the decisions of the European Court of Justice; and that regard may be had to the Reports by Mr Jenard, Professor Schlosser and others (as defined in s. 50 of the CJJA). By the time of the oral argument before us (but not before the Judge) this was common ground between the parties.[18]It was also common ground by the time of the hearing before us (but not before the Judge) that there were two different standards governing different aspects of the issue which the court had to decide. The test imposed by the concept of whether a new contract is “concluded” is a question of law which the court must determine on the jurisdiction application, not a question whether there is a good arguable case that it bears the meaning for which the claimant contends. This is so as a matter of principle and authority. As to principle, it is a pure question of law which arises as the gateway to jurisdiction, which will not be revisited. The court must decide what the test is in order to apply it. Moreover, if the test were what amounts to an arguable construction of the gateway test, the arguable construction would become the gateway itself. As to authority, the point was addressed in EF Hutton & Co (London) Ltd v Mofarrij [1989] 1 WLR 488, in which Kerr LJ was considering what was meant by the gateway of a claim which “affects” a contract governed by English law, then found in R.S.C., Ord. 11, r. l(l)(f)(iii). At p. 495 he rejected the submission that it was sufficient if the plaintiff established merely a good arguable case as to what it meant. That is the approach the court has consistently taken to the interpretation of jurisdictional gateways, as opposed to their application, including for example what is meant by “necessary or proper party” or a claim “in respect of” a contract governed by English law (which is the terminology in the successor to RSC Order 11 r. 1(1)(f)(iii)). Soleymani is an example of such an approach to this very consumer contract gateway in s. 15B of the CJJA.[19]When it comes to the application of the test:(1) The claimant need only establish a good arguable case that the test is met on the facts, in the sense explained in Brownlie v Four Seasons Inc [2017] UKSC 80 [2018] 1 WLR, confirmed in Goldman Sachs International v Novo Banco SA [2018] UKSC 34 [2018] 1 WLR 3683 (see also Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 1 [2019] 1 WLR 3514).(2) In determining whether there is a good arguable case on the facts, the Judge will often be exercising an evaluative judgement in relation to the different strands of evidence taken as a whole. In those circumstances an appeal court will not interfere with such an evaluative assessment and substitute its own assessment unless it falls outside the range reasonably available to the judge (see e.g. Kaefer at [95]-[98] amongst many authorities).

The Judgment

[20]The Judge gave a careful and well-reasoned judgment. It is only necessary to set out what he said at [53] which contains the essence of his reasoning and conclusion on the issue:
“Irrespective of whether there was a formal, legal novation by the agreement to the 2016 Terms, there is no doubt that in 2016 there was a fundamental restatement of the parties' legal relationship, which extinguished all the terms upon which the parties had been operating, and substituted them wholesale with a comprehensive new set of terms. As set out above, the 2016 Terms also introduced the very rights upon which the consumer seeks redress. Even if this did not amount to formal novation in law, there is also a good arguable case that the wholesale restatement was sufficiently akin to a novation (to use the language of Foxton J [in [73(vi)] of Khalifeh v Blom Bank SAL [2021] EWHC 3399 (QB)] such that the relevant consumer contract was concluded, for the purposes of section 15E(1)(c) of the CJJA, in 2016. Again, this conclusion, in light of the additional requirement for there to be, at this point in time, the direction of activities by the company to the relevant state in which the consumer is domiciled, does not offend against the integrity of a narrow exception to the general jurisdiction rules, when balanced with the objective of protecting the consumer.”
[21]The references to novation were to English law contractual principles of novation, which Mr Wilson KC had argued were the applicable principles. Mr Wilson maintained that stance in his grounds of appeal and skeleton argument, but abandoned it in oral argument before this court.

The submissions

[22]The rival submissions of the parties as to what the correct test is, and its application, have changed considerably over the course of the application, on each side, and the final iterations were articulated orally before this Court in a way which did not follow the skeleton arguments and which at times I confess I found difficult to pin down. I therefore find it convenient to set out my own approach to those issues, and address the submissions to the extent necessary in the course of doing so, rather than to attempt to summarise the rival submissions at the outset.

The test

[23]I start by observing that in some cases in which the parties agree changes to a contract for the provision of goods and services which extend the scope of the contract to different or additional goods or services, it may be possible to analyse the changes as involving a separate new contract being concluded for the new goods or services. Neither side suggested that this was such a case. Both proceeded on the basis that there was a single framework agreement, both before and after 2016, for the provision of banking services, not separate contracts for individual services or accounts.[24]We were not directed to any decision of the European Court, or to any academic writing, which directly addresses the issue. Two aspects of the recitals to the Recast Regulation identify potentially relevant underlying principles. The first, derived from Recital (15), is that “[t]he rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor.” The second, derived from Recitals (14) and (18), is that the derogation from the general principle that a defendant is to be sued at their place of domicile, for professionals sued in relation to consumer contracts, is intended to protect consumers by enabling them to sue in their own place of domicile because such protection is justified by their being the weaker party. Accordingly, the issue in this case as to what test is to be applied to whether a new contract is “concluded” by changes to an existing contract, should be answered in a way which so far as possible promotes certainty and predictability, and protects the consumer as the weaker party in enabling them to sue in their jurisdiction of domicile.[25]Mr Wilson relied on what he said was a further principle, namely that, because the consumer contract provisions in Articles 17 to 20 are derogations from the general scheme of the Recast Regulation and its predecessors that a person is to be sued at their place of domicile, they are to be construed restrictively. In this respect he relied upon a statement at [32] of Gruber v BayWa AG Case C-464/01 [2006] QB 204 that “…the rules of jurisdiction which derogate from that general principle are to be strictly interpreted, so that they cannot give rise to an interpretation going beyond the cases envisaged by the Convention.” Mr Wilson sought to treat this as a principle that the consumer contract provisions were to be strictly interpreted in the sense of being restrictively interpreted as an overarching principle, but this is not what the passage conveys. It merely confirms that the purposes of the derogation must be served by the interpretation put upon it, because that is what is envisaged by the Brussels Convention and its successors. In that case the person claiming to be a consumer was also acting in a commercial/professional capacity (a farmer who ordered tiles for his farm buildings which included not only his dwelling but the commercial farm buildings), such that he could not be regarded as a weaker party to whom the derogations should extend.[26]I have not derived any real assistance from the imperative of protection of the consumer as the weaker party because, wherever the test is put on the spectrum, whether it assists the consumer to sue in their home jurisdiction may depend upon the happenstance of changes in the location of the commercial party’s activity, or changes in the consumer’s domicile, or both.[27]Suppose, for example there is no change of domicile by the consumer, but a change in location of activity by the commercial party. The home jurisdiction imperative will be served by a high threshold of when a contract is concluded if at the time of the original contract, but not the change in terms, the commercial party is pursuing activity in or directed to the home state of the consumer. But it will be served by a low threshold if, conversely, the commercial party is not pursuing activity in or directed to the consumer’s home state at the time of the first contract but is doing so at the time of the change in terms. It might at first sight be thought that the commercial party is likely to be pursuing activity in or directed to the place where the consumer is domiciled both at the time of the first contract and the agreement of new terms, on the footing that the interaction with the customer will dictate that conclusion, but that would be an error. The activity condition in s.15E, reflecting the position under the Recast Regulation, does not require the conclusion of the contract to have any causal connection with that activity. It is fulfilled if the commercial party is pursuing any relevant activity in or directed to the state where the consumer is domiciled, without the activity needing to have any causal connection with the interaction between the commercial party and consumer; the activity and interaction may occur in different places from each other and need not even be in the same state. In Emrek v Sabranovic(Case C-218/12) [2014] Bus LR 104 a German domiciled consumer bought a car in person from a dealer across the border in France. The activity requirement was held to be fulfilled, enabling him to sue the dealer in Germany, because the dealer also had at that time a website directed to potential car purchasers in Germany, even though the purchaser was unaware of the website and had learned of the dealer by word of mouth. So an English domiciled purchaser of goods from a French trader whilst on holiday in France, for example, will have a protected consumer contract which he can sue on in England if the trader happens also to be selling such goods in England at the time (even if the consumer is ignorant of that fact), but not if the trader is confining his commercial activities to France or countries other than England at that time.[28]Now suppose a change in domicile by the consumer from state A at the time of the first contract to state B at the date of the new terms, without any change in the location of the commercial party’s activity. If the commercial party happened to be pursuing activity in or directed to state B at the date of the first contract (as well as in state A), but not at the date of the new terms, this would favour a high threshold so as to enable the consumer to sue in their new state of domicile, state B. But conversely, if the commercial party were pursuing activity in or directed to state B at the date of the new terms but not at the date of the first contract, a low threshold would enable the consumer to sue in their home jurisdiction. But then again, if the consumer had moved domicile to state C by the time of suit, a high test would favour home jurisdiction if the commercial party happened to have been pursuing relevant activity in or directed to state C at the date of the first contract.[29]A combination of change of domicile and change in location of the commercial party’s activity will produce a similar dichotomy as to whether a low or high threshold test favours the consumer’s home jurisdiction, depending on the individual circumstances.[30]The imperative of certainty or predictability provides more of a pointer. A test at one or other end of the spectrum, rather than somewhere in the middle would more likely promote predictability of jurisdiction. The plain meaning of the word “conclude” in relation to a contract is inconsistent with it meaning the kind of minor variation which would be towards the bottom of the spectrum. On the contrary, as a matter of normal use of language it conveys the concept of the creation of a new contract, whether as a matter of form or substance.[31]I have found further assistance in the European Court’s decision in Hellenic Republic v Nikiforidis(Case C-135/15), [2016] I.L.Pr N 39, to which the Judge was not referred. In Nikiforidis, the European Court was considering a reference from the Bundesarbeitsgericht, the German Federal Labour Court, for a preliminary ruling which, amongst other things, required a consideration of the meaning of Article 28 of the European Parliament and Council Regulation 593/2008 on the law applicable to contractual obligations (‘the Rome 1 Regulation’). Article 28 provided that it applied to contracts “concluded on or after 17 December 2009”. The case arose out of an employment contract between the Greek State and Mr Nikiforidis who had been employed as a teacher at a Greek school in Germany since 1996. In 2010 Greece enacted urgent measures to address its fiscal crisis, including pay cuts for all public employees. The school applied these cuts to Mr Nikiforidis. Mr Nikiforidis commenced proceedings in Germany claiming his lost remuneration on the basis that his salary had been negotiated under German collective bargaining laws, that it was governed by German law, and that it was not subject to the Greek fiscal laws.[32]The issue which arose before the Bundesarbeitsgericht was whether the German court could take into account Greek fiscal laws as overriding mandatory provisions under the relevant private international law. That, in turn, depended on whether the applicable law of Mr Nikiforidis’ employment contract was to be determined in accordance with the Rome I Regulation rather than its predecessor, the Rome Convention, which was in force when the employment contract was originally concluded in 1996. The Bundesarbeitsgericht referred the following question to the European Court:
“(1) Is the Rome I Regulation applicable under Article 28 of that regulation to employment relationships exclusively in the case where the legal relationship was formed by a contract of employment entered into after 16 December 2009, or does every subsequent agreement by the contracting parties to continue their employment relationship, whether with or without variation, render that regulation applicable?”
[33]The German court mooted that the Rome I Regulation might apply to contracts originally formed prior to 17 December 2009 where they had subsequently been varied or amended, such as through “certain changes in the employment relationship such as contractual variation of the gross remuneration or of the obligation to work, or continuance of work after a breach of contract or after another form of interruption in the performance of the contract” ([21]).[34]The Court answered that question as follows: “34 Although [the proposal for the Rome 1 Regulation] envisaged the inclusion within the scope of the Regulation of “contractual obligations arising after its entry into application”, the reference to such obligations was replaced in art.28 of the Rome I Regulation by a reference to “contracts” concluded as from 17 December 2009. Whilst the reference, proposed by the Commission, to contractual obligations arising after the entry into application of that Regulation covered, in addition to contracts concluded after its entry into application, the future effects of contracts concluded before then, that is to say, obligations arising from the latter after then, this is not so in the case of the wording of art.28 of the Rome I Regulation, which covers exclusively contracts concluded on or after 17 December 2009, the date on which that Regulation became applicable pursuant to art.29 thereof. It follows that, contrary to what the referring court envisages, any agreement by the contracting parties, after 16 December 2009, to continue performance of a contract concluded previously cannot have the effect of making the Rome I Regulation applicable to that contractual relationship without thwarting the clearly expressed intention of the EU legislature. 35 That choice would be called into question if any, even minor, variation made by the parties, on or after 17 December 2009, to a contract initially concluded before that date were sufficient to bring that contract within the scope of the Rome I Regulation. 36 Furthermore, it would be contrary to the principle of legal certainty and, more specifically, have an adverse effect on predictability of the outcome of litigation and on certainty as to the law applicable, which, according to recital 6 of the Rome I Regulation, constitute an objective of the latter, to hold that any variation made to the initial contract by mutual agreement, on or after 17 December 2009, brings that contract within the scope of the Regulation and, ultimately, makes that contract subject to conflict-of-law rules other than those applicable when it was initially concluded. 37 On the other hand, the possibility remains, as the Commission has pointed out in its written observations, that a contract concluded before 17 December 2009 may be subject, on or after that date, to a variation agreed between the contracting parties of such magnitude that it gives rise not to the mere updating or amendment of the contract but to the creation of a new legal relationship between the contracting parties, so that the initial contract should be regarded as having been replaced by a new contract, concluded on or after that date, for the purposes of art.28 of the Rome I Regulation. 38 It is for the referring court to determine whether, in the present instance, the contract concluded between Mr Nikiforidis and his employer underwent a variation agreed between the parties of such magnitude on or after 17 December 2009. If it did not, the Rome I Regulation would not be applicable in the main proceedings. 39 In the light of all the foregoing considerations, the answer to the first question is that art.28 of the Rome I Regulation must be interpreted as meaning that a contractual employment relationship that came into being before 17 December 2009 falls within the scope of the Regulation only in so far as that relationship has undergone, as a result of mutual agreement of the contracting parties which has manifested itself on or after that date, a variation of such magnitude that a new employment contract must be regarded as having been concluded on or after that date, a matter which is for the referring court to determine.” (My emphasis)[35]That was a decision on the wording of the Rome 1 Regulation, which is concerned with proper law. A similar question arose in relation to the wording of Article 19(3) of the Rome 1 Regulation in Khalifeh, in which Foxton J was considering a number of questions in relation to a claim by a customer of a Lebanese bank. Article 19(3) provides that “[f]or the purposes of determining the habitual residence the relevant point in time shall be the time of conclusion of the contract”.[36]The relevant issue was whether a new contract had been concluded as a result of what Foxton J described as minimal and highly ancillary new terms agreed by way of change to the banking contract (the details of which are recorded in [70(iii), (iv), (v) and (vi)]). The argument therefore was, as it had to be, that any variation to the terms was sufficient to amount to the conclusion of a new contract. It would appear that Nikiforidis was not cited to Foxton J, whose analysis at [73] was much relied on in the argument before the Judge in this case. It was in the following terms:
“In these circumstances, it is necessary to address Mr Cox QC's legal argument that any contractual variation (including those of the kind in issue here) requires the application of Article 6 of Rome I for all purposes at the date of the last variation. I am unable to accept this submission: i) The argument finds no support in the terms of Rome I, Article 19(3) referring simply to "the date of the conclusion of the contract". ii) The argument would seem to involve the applicable law of the contract varying at different points in time, which would be a recipe for chaos and potentially involve a retrospective impact on accrued rights and obligations. Further, it would seem to follow from Mr Cox QC's argument that a contract which was not concluded with a consumer might subsequently fall within Article 6 (and the special jurisdiction regime for consumers) if amended at a point in time at which the relevant contracting party had become a consumer: for example, someone who purchased a computer for work purposes, but later extended the contractual warranty at a point in time when they were using the computer for domestic purposes. There would also be contracts in which a later amendment could "cost" the consumer their Article 6 protection (for example a case in which, by the time of an amendment, the "consumer" had moved to a country towards which the professional party was not directing its activities). It would also, on Mr Cox QC's argument, attribute very significant differences to the issue of whether a new arrangement between contracting parties as to some aspect of their dealings amounted to a variation of an existing contract or a new, separate contract. It is difficult to conceive of an interpretation less conducive to the aim of Rome I, as recorded in Recital (6), "to improve the predictability of the outcome of litigation [and] certainty as to the law applicable". iii) While it would be possible to treat the subject-matter of any variation as, in effect, a stand-alone contract to which Article 6 would fall to be applied prospectively, that would involve different parts of the same contract being subject to different applicable laws. While dépeçage is conceptually possible and is contemplated by Article 3(1) of Rome I, Dicey, Morris & Collins, [32-026], notes that it is "in practice inconvenient, and infrequent". The Giuliano-Lagarde Report, p.17, notes that dépeçage must be limited to cases where "elements in the contract … can be governed by different laws without giving rise to contradictions". There will be many contractual variations which cannot be treated separately from the pre-variation terms of the contract (for example a change to the level of fees charged for contractual services which are a standard feature of continuing contracts such as those governing banks accounts, or later terms releasing or modifying an existing obligation). The matters relied upon by Mr Cox QC here are, at best, of this kind. iv) In any event, the right which Mr Khalifeh asserts – repayment of the account balance – is not one which either arose or was modified by the 2019 Key Features Document. v) These difficulties are not (or at least not obviously) confined to consumer contracts, because there are other provisions of Rome I which involve determining the applicable law by reference to the habitual residence of one party at the date of contracting: e.g. under Articles 4(1)(a), (b), (d), (e), (f) and (2) (Applicable law in the absence of choice), 5(1)-(2) (contracts of carriage) and 7(1)(3) (insurance contracts). vi) In my view, there is very real force in Mr Wilson QC and Mr Ferro's submission that Mr Khalifeh's case involves a category error in the application of Rome I. Once it is established that there is a "contract", and its applicable law determined by reference to the provisions of Rome I, the issue of the status and effect of any subsequent variation to that contract is determined by applying the applicable law so determined, rather than raising a new issue for determination under Rome I as to what the applicable law of the contract (as varied) now is. vii) There can be contractual variations which amount to a complete restatement of the parties' relationship, sometimes with retrospective effect (cf. the discussion of a similar issue in a very different context in MacDonald Eggers, Picken and ors, Good Faith and Insurance Contracts (4th), [10.25]) or which involve something akin to a novation in practical, albeit not legal, terms (such as the example given in McParland, [5.70]). The application of Article 6 in such a situation is best considered in a case in which it arises. However, the minimal and highly ancillary nature of the new terms which were agreed in this case does not come close to raising this type of argument.” i) The argument finds no support in the terms of Rome I, Article 19(3) referring simply to "the date of the conclusion of the contract". ii) The argument would seem to involve the applicable law of the contract varying at different points in time, which would be a recipe for chaos and potentially involve a retrospective impact on accrued rights and obligations. Further, it would seem to follow from Mr Cox QC's argument that a contract which was not concluded with a consumer might subsequently fall within Article 6 (and the special jurisdiction regime for consumers) if amended at a point in time at which the relevant contracting party had become a consumer: for example, someone who purchased a computer for work purposes, but later extended the contractual warranty at a point in time when they were using the computer for domestic purposes. There would also be contracts in which a later amendment could "cost" the consumer their Article 6 protection (for example a case in which, by the time of an amendment, the "consumer" had moved to a country towards which the professional party was not directing its activities). It would also, on Mr Cox QC's argument, attribute very significant differences to the issue of whether a new arrangement between contracting parties as to some aspect of their dealings amounted to a variation of an existing contract or a new, separate contract. It is difficult to conceive of an interpretation less conducive to the aim of Rome I, as recorded in Recital (6), "to improve the predictability of the outcome of litigation [and] certainty as to the law applicable". iii) While it would be possible to treat the subject-matter of any variation as, in effect, a stand-alone contract to which Article 6 would fall to be applied prospectively, that would involve different parts of the same contract being subject to different applicable laws. While dépeçage is conceptually possible and is contemplated by Article 3(1) of Rome I, Dicey, Morris & Collins, [32-026], notes that it is "in practice inconvenient, and infrequent". The Giuliano-Lagarde Report, p.17, notes that dépeçage must be limited to cases where "elements in the contract … can be governed by different laws without giving rise to contradictions". There will be many contractual variations which cannot be treated separately from the pre-variation terms of the contract (for example a change to the level of fees charged for contractual services which are a standard feature of continuing contracts such as those governing banks accounts, or later terms releasing or modifying an existing obligation). The matters relied upon by Mr Cox QC here are, at best, of this kind. iv) In any event, the right which Mr Khalifeh asserts – repayment of the account balance – is not one which either arose or was modified by the 2019 Key Features Document. v) These difficulties are not (or at least not obviously) confined to consumer contracts, because there are other provisions of Rome I which involve determining the applicable law by reference to the habitual residence of one party at the date of contracting: e.g. under Articles 4(1)(a), (b), (d), (e), (f) and (2) (Applicable law in the absence of choice), 5(1)-(2) (contracts of carriage) and 7(1)(3) (insurance contracts). vi) In my view, there is very real force in Mr Wilson QC and Mr Ferro's submission that Mr Khalifeh's case involves a category error in the application of Rome I. Once it is established that there is a "contract", and its applicable law determined by reference to the provisions of Rome I, the issue of the status and effect of any subsequent variation to that contract is determined by applying the applicable law so determined, rather than raising a new issue for determination under Rome I as to what the applicable law of the contract (as varied) now is. vii) There can be contractual variations which amount to a complete restatement of the parties' relationship, sometimes with retrospective effect (cf. the discussion of a similar issue in a very different context in MacDonald Eggers, Picken and ors, Good Faith and Insurance Contracts (4th), [10.25]) or which involve something akin to a novation in practical, albeit not legal, terms (such as the example given in McParland, [5.70]). The application of Article 6 in such a situation is best considered in a case in which it arises. However, the minimal and highly ancillary nature of the new terms which were agreed in this case does not come close to raising this type of argument.”
[37]In the present case, Mr Friedman KC argued that principles applicable to proper law under the Rome 1 Regulation could not be applied to the quite different circumstances of jurisdiction under the Recast Regulation. He submitted that jurisdiction was something established once and for all only at the moment of suit. That is true, but the application of s. 15B and 15E has two components. One is domicile of the consumer at the time of suit pursuant to s. 15B(2)(b); the other is the condition that there is a consumer contract, which looks back to the date of the conclusion of the contract and imposes the activity condition by reference to the place of the consumer’s domicile and commercial party’s activity at that earlier point of time. Mr Friedman further submitted, with greater force, that the problem which arises in the context of changes to proper law retrospectively affecting the substantive rights of the parties does not apply in the context of jurisdiction. So, for example, a change in the proper law applicable to a banking contract might retrospectively have the effect that the bank had been bound to give advice at a time when under the previous proper law it was entitled to act on an execution only basis. Moreover the problem of dépeçage is peculiar to proper law, and to the extent that a change to when a contract is concluded might involve potential jurisdictional fragmentation, it was avoided or at least mitigated by the width of s. 15B(1) which extends the consumer protection to proceedings where their subject matter “is a matter relating to a consumer contract”. Moreover, there is not the problem identified in [73(vi)] of Khalifeh, namely a potential category error by virtue of the status and effect of a variation being governed by the previous proper law rather than the Rome 1 Regulation.[38]There is considerable force in these distinctions. Nevertheless, I am persuaded that the test is and should be the same for the purposes of Articles 17 to 20 of the Recast Regulation, and therefore sections 15B and 15E of the CJJA, as it is for Articles 28 and 19(3) of the Rome 1 Regulation. This is for a number of reasons. The language used, referring to the conclusion of a contract, is the same in the two instruments and the starting point is therefore that it ought to be given the same meaning in its application to contract changes unless there is good reason to the contrary. The language of the Rome 1 Regulation was adopted with the specific intention of harmonising it with the Brussels Regulation, the precursor of the Recast Regulation, in its application to consumer contracts, as Recital (24) to the Rome 1 Regulation makes clear in referring to consistency with the Brussels Regulation (and see also AY v Liechtensteinische Landesbank (Osterreich) AG (C-279/24) [2026] I.L.Pr. 5 at AG 43). There is an interaction between proper law and jurisdiction which points to the need for harmonisation of the test to be applied in the two instruments. As Mr Wilson submitted, allocation of jurisdiction will dictate what private international law principles are applied as part of the lex fori; and Articles 9 and 21 of the Rome 1 Regulation permit the court seised of jurisdiction to apply certain of those lex fori principles to override those which would otherwise apply under the proper law determined by the other parts of the Rome 1 Regulation. Article 9 permits the court seised of jurisdiction to apply principles regarded as crucial for the safeguarding of its public interests to be applied as overriding mandatory provisions as part of the lex fori; and Article 21 enables the court seised of jurisdiction to ignore the provisions of the Rome 1 Regulation if and to the extent that they are manifestly incompatible with the public policy of the forum.[39]Moreover, as I have observed, the imperative of certainty and predictability of jurisdiction which flows from Recital (15) of the Recast Regulation, when taken in conjunction with the natural use of the language of “concluding” a contract, dictates a test which requires the conclusion of what is in substance or form a new contract. That it should be a matter of substance, not merely of form, is consistent with the fact that the consumer protection provisions are imposed irrespective of the intention of the parties at the time of agreeing contractual terms: with very limited exceptions they may only be contracted out of after the dispute has arisen (section 15B(6)).[40]I would therefore treat the test for when a change in contract terms amounts to the conclusion of a contract within the meaning of s. 15E CJJA as being that articulated in Nikiforidis, namely whether the variation agreed between the contracting parties is of such magnitude that it gives rise not to the mere updating or amendment of the contract but to the creation of a new legal relationship between the contracting parties, so that the initial contract should be regarded as having been replaced by a new contract, concluded on or after that date. Although Nikiforidis was not cited to the Judge, this is in substance the test which he identified and purported to apply in [53] of the Judgment. To describe it as something akin to a novation, as the Judge did, is an apt description provided it is kept in mind that the test is one of substance, not form, and depends upon the substantial effect of the changes being of such a magnitude that they are to be regarded as replacement by a new contract. Mr Wilson had argued that what was required as a minimum (although not necessarily sufficient) was an actual novation, not something akin to a novation, in the sense of a demonstrable intention to rescind the existing contract. This is to seek to reintroduce English law concepts based on the intention of the parties and/or to look to form over substance, neither of which is justified.[41]Mr Wilson now submitted that what was required was a focus on the “real world change to the relationship between the parties”, which he explained meant a change in a practical or operational sense. This is not, however, the correct focus. The section is concerned with the conclusion of a contract, which is a legal concept, and what matters is a change in the legal relationship, as is indeed reflected in the language of Nikiforidis. If there is a wholesale change in the legal relationship, it is nothing to the point that the parties continue to interact in practice in the same way; they are doing so on the basis of a wholly new legal contractual relationship and therefore pursuant to a newly concluded contract.[42]A question which does not arise for decision on the facts of this case, but which was canvassed in argument, is whether the test would be fulfilled where there was what would be regarded by English contractual principles as a novation, for example by an express agreement that the previous contract was to be extinguished and replaced. I see some force in Mr Wilson’s submission that that would not be the conclusion of a new contract within the meaning of s.15E of the CJJA unless there were a change of substance: the test in Nikiforidis looks to substance not form and English law principles are not applicable. This question might well arise in the banking context where changes in terms are effected by replacement terms in full, said to extinguish and supersede the previous terms, albeit that many remain unchanged. It might also arise in the context of a corporate reorganisation following mergers or acquisitions, which are common in the sector, which involves the customer being transferred seamlessly to a new corporate counterparty within the banking organisation without any change in terms other than the identity of the counterparty. A change in party would involve a new contract in English contract law but it does not follow that a new contract would be concluded for the purposes of s. 15B and 15E. Since the point does not arise on the facts of the case, I refrain from expressing any concluded view on it.[43]Mr Friedman submitted that it was sufficient to amount to the conclusion of a new contract if the term being sued on was a new term. I would reject that submission. It is contrary to the considerations I have already identified, and is flatly inconsistent with the language of the section and Article 17, which are concerned with the conclusion of a contract: that concept necessarily focuses on the creation of contractual rights and obligations, not reliance on them. If the argument were right it would involve a new contract being concluded when there was the most minor and insignificant variation, say an increase in the bank’s charges for one form of account of £5 per annum, merely if and because the dispute concerned the obligation to pay such a fee (or indeed if such term was relied on only incidentally and as part of a claim largely based on unamended terms, if the width to be accorded to the “related to” wording is as advocated by Mr Friedman). That would be an absurd construction.[44]Mr Friedman’s alternative submission was that the test would be met by any “material” change. When pressed as to what was meant by material, he submitted that it should be given the meaning attributed to the word in other unrelated branches of English law. This impermissibly seeks to apply English law notions to what is an issue of interpretation in accordance with autonomous EU principles. It is also contrary to the language of the section: a material variation to a contract is not the conclusion of a contract. Moreover, it would be a recipe for uncertainty and therefore contrary to the imperative of predictability of jurisdiction. Although Foxton J referred in [73(iv)] of Khalifeh to the fact that the terms being sued on in that case did not include the new variations, he did not treat that as the test, and its evidential value lay in reinforcing how minor were the changes in that case.

Application to the facts

[45]The Judge concluded that the test was fulfilled because there was a fundamental restatement of the parties’ relationship which extinguished all the terms upon which the parties had been operating and substituted them wholesale with a comprehensive new set of terms which, if not what English law would treat as a novation, was at least sufficiently akin to a novation as a matter of substance, at least to the standard of a good arguable case. I have little hesitation in saying that that was an evaluative assessment of the evidence which was well within the range of judgements he was entitled to make on the evidence. Indeed, I would entirely agree with it.[46]The particular features which justify that conclusion are the following:(1) The only express terms which governed the banking relationship prior to 2016 were the 1994 Terms, which were only apposite to a passbook savings account and inapplicable to current or deposit accounts opened before 2016. The legal relationship before 2016 was therefore for the most part not covered by any express terms. The 2016 Terms were full, comprehensive and covered all aspects of banking operations which were then being conducted and might in the future be conducted. All the terms were new apart from a few of the terms applicable to a passbook savings account. Even the new passbook savings account terms did not merely replicate the 1994 Terms. In addition to some of the same terms, they not only introduced terms covering the freezing period at the end of which interest would be paid and provisions in relation to retention of documents and waiver of banking secrecy; they also expressly made clear that the savings account was governed by the General Terms as part of a single new agreement.(2) This was one of a number of terms which made clear that the 2016 Terms constituted a single new agreement. To the same effect were: (a) clause 1 of the General Terms, which made clear that there was a single general account under which there could be operated sub accounts and operations of different kinds identified in other clauses of the General terms, including current accounts, foreign currency accounts, term and sight deposit accounts and documentary credits and letters of guarantee; clause 1 concluded that all the appended agreements constituted an integral part of the whole agreement; (b) clause 10 of the General Terms provided for the Bank’s right to treat debits and credits on the various accounts as constituting a single balance, to merge, offset and consolidate them, with a right to convert to a single currency for that purpose, and to liquidate all and any investments and assets to meet any sums due, including any investments in a Portfolio account.(3) The 2016 Terms were by way of replacement of all existing terms. The Portfolio Terms expressly stated that they superseded any prior agreement relating to the subject matter of such terms. Mr Wilson argued that the inclusion of an express provision to that effect in these terms indicated that it was not intended that any of the other 2016 terms should be by way of superseding or replacement. However that argument is inconsistent with the provisions treating the 2016 Terms as a single agreement; and with the fact that there were in fact no previous express terms to replace other than the 1994 Terms applicable only to a passbook savings account, and they were expressly being replaced not only by new savings account terms but by the incorporation of the General Terms. Insofar as there were any implied terms as a matter of Lebanese law governing the other accounts which were opened prior to 2016 (which was how Mr Wilson characterised the effect of previously applicable Lebanese law provisions), such implied terms were self-evidently replaced by express terms.(4) The new terms were wide ranging in their nature, scope and effect. By way of example only, they contained numerous exclusions or limitations of liability, a right for the Bank to consolidate and set-off account balances, an unlimited discretion to alter interest rates at any time, the right to treat account statements as conclusive unless challenged within 15 days and extensive waivers of banking secrecy.(5) The 2016 Terms applied to a host of new banking products, including in particular those referred to in clause 1 of the General Terms and those covered by the investment banking envisaged by the Portfolio Terms and FX terms. It is irrelevant whether Sheikh Alesayi had in fact taken advantage of the particular new forms of trading which these aspects of the new framework agreement envisaged might be available to him. It is enough that these terms were agreed in 2016 as those which would govern such operations if and when they were undertaken. The framework agreement thereby created extended to all such potential operations and it is the scope of that framework agreement which is in issue.(6) The Professional Client Consent changed the entire regulatory approach with which it was necessary for the Bank to comply in its dealings with Sheikh Alesayi, relieving it of any obligation to consider or advise on the suitability of any transaction.[47]Mr Wilson argued that it was uncontested on the evidence that the shared understanding of the parties was that the exercise in 2016 amounted to no more than an administrative exercise to maintain updated customer documentation, prompted by the Bank’s routine file review, and there was no “real world” change to the banking relationship. He based this on Mr Ghazaleh’s witness statement evidence to which I have referred at [10] above. This rather overstates the evidential position. The fact that Sheikh Alesayi did not respond to this evidence cannot be regarded as sufficient to make it common ground or part of a shared understanding because it was not suggested that he was told of the Bank’s motives at the time (and his evidence being that he had no recollection of signing them). It hardly seems right to describe something as a “routine” file review for these purposes if, as the relevant paragraph of Mr Ghazaleh’s statement positively avers, no updated documentation had been provided by Sheikh Alesayi since the account was opened in 1994, over 20 years earlier. Mr Ghazaleh’s averment that Sheikh Alesayi had also not provided any updated KYC documentation in that period is falsified by the existence of such KYC documentation from 2009 which the defendant itself disclosed. But these evidential considerations are not what matters. The changes were legal, not “administrative”. The 2016 Terms were detailed contractual terms of an obviously legal character, and intended to be of legal effect, as the defendant accepts. Their effect was to introduce a whole suite of new contract terms, as again the defendant accepts. What matters for present purposes is the effect they had on the legal relationship, which is to be objectively ascertained from the terms themselves, and which, on any view, was extensive. This was on any view a very extensive “real world” change to the banking relationship.

Other criticisms of the Judgment by the parties

[48]Each side subjected various parts of the Judgment to criticism. These criticisms are irrelevant given my conclusions that the Judge applied the correct test, and that in applying it he reached an evaluative judgement which he was entitled to reach. Nevertheless, it is right to record that, to the extent there are occasional infelicities in other parts of the Judgment, they are the result of a failure by the parties to provide the assistance which the Judge was entitled to expect. Of particular note are the following.(1) As the Judge said when addressing the permission to appeal application made to him, it was presented as common ground to the Judge at the hearing that the standard of good arguable case applied to the issue as a whole, without any distinction being drawn between the meaning of the statute and its application. Mr Wilson disputed this, but looking at the written skeleton and oral submissions as a whole, I agree with the Judge. The defendant then alleged that that was an error on the Judge’s part in its grounds of appeal. Sheikh Alesayi’s skeleton argument responded by saying he was “content” for the Court to address the construction issue on a final basis. The correct approach was not identified for the Judge by either party.(2) The Judge was addressed by both sides on the footing that English contract law on novation was relevant. The defendant expressly invited the Judge to apply it.. Ground 4 of the grounds of appeal was that the Judge had erred in the test applied at [53] because he ought to have applied a test of the intention of the parties, objectively ascertained, in accordance with the English contract case law considered by the Supreme Court in Cobalt Data Centre 2 LLP v Revenue and Customs Commissioners [2024] UKSC 40 [2024] 1 WLR 5213 (which had not been cited to the Judge). This was an erroneous approach because, as I have explained, the interpretation of the statute involves an autonomous EU law question, in accordance with the decision in of this Court in Soleymani v Nifty Gateway (which was footnoted at one point in the defendant’s lengthy skeleton before the Judge but not relied on as dictating an EU law approach). In oral argument in this court Mr Wilson then abandoned ground 4 and argued that the issue of construction was governed by autonomous EU law principles and that the test should be that set out in Nikiforidis, to which the Judge had not been referred, and which it was now argued the Judge had failed to apply.(3) Not only was Nikiforidis not cited to the Judge, but neither side contended for such a test before him. It is characteristic of the shifting sands in this case that Nikiforidis was identified for the first time on appeal, in the respondent’s skeleton argument for the appeal, but for the purposes of distinguishing it as inapplicable save to a fallback casein the event that the CJJA was to be interpreted by reference to the Rome 1 Regulation, which was challenged; in oral argument Mr Wilson then embraced the case as identifying the correct test, in place of the argument in his grounds of appeal and skeleton argument; and in oral argument Mr Friedman then relied on the test it contained only as a third alternative fallback, if wrong in his contentions that it was sufficient if a change was material, alternatively sufficient if a new term was being sued on. Mr Friedman argued that since the only ground of appeal which addressed the correct test (ground 4) had been abandoned, that alone should result in dismissal of the appeal. In fact, it falls to be dismissed because despite not having Nikiforidis cited to him, and despite neither party contending for a test as adumbrated in that case, the Judge had the wisdom to apply essentially the same test.

Conclusion

[49]For these reasons I would dismiss the appeal.[50]I agree.[51]I also agree.