In O’Connor & Anor v Masterwood (UK) Ltd & Ors, the plaintiffs alleged that a prior agreement with a third party to the dispute which did not contain a governing jurisdiction clause should govern the arrangement. The Court felt that it did not need to look beyond the agreement itself and, in circumstances where it was signed, the requirements of Article 23 of the Brussels 1 Regulation to determine jurisdiction were satisfied.

The Plaintiffs brought an appeal based on Article 23 (“Prorogation of Jurisdiction”) of the Brussels I Regulation (Council Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). The central issue in this case was whether an agreement between the plaintiffs and the second named defendant (an Italian company associated with the first named defendant) conferred exclusive jurisdiction on the Italian courts. The agreement in question provided for the exclusive jurisdiction of “the Court of Rimini”, which the High Court had applied, on the basis that the plaintiffs had agreed to that clause as it was clearly set out in the main agreement. Notwithstanding that the clause involved appeared immediately above the signature of the first named plaintiff on the printed conditions, the plaintiff claimed that it was not brought to its attention and instead suggested that a prior agreement (which contained no jurisdiction clause) with the first-named defendant should govern the arrangement.

The Supreme Court ruled that the second named defendant was entitled to rely upon Article 23(1)(a), with regard to the agreement conferring jurisdiction either being in writing or evidenced in writing, as the clause was contained in a signed written document. In the circumstances, the parties should not therefore have to look any further as to the background to the agreement. The Supreme Court further noted that in any case, Article 23 does not expressly require the parties’ signature. It was also satisfied that Article 23(1)(c) applied in this case and reiterated the obvious point that even if the plaintiff paid little attention to the terms, parties to such agreements must be aware that such clauses affect their commercial rights and so choose to ignore them at their peril. On this basis, the relationship was found to be exclusively governed by the Italian courts and so and the appeal dismissed.