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When Can Sophisticated Investors Be Consumers?

A recent High Court judgment in Ramona Ang v Reliantco Investments Limited [2019] EWHC 879 (Comm) has confirmed that wealthy investors with greater risk appetite and knowledge of financial products than the average person can be considered “consumers” for the purposes of Section 4 (Articles 17-19) of the Recast Brussels Regulation (Brussels Recast).

Background

The claimant, Ms Ang, “an individual of substantial means”, was married to Craig White, a noted computer scientist who had publicly identified himself as being “Satoshi Nakamoto”, the inventor of Bitcoin.

She made investments in Bitcoin futures through “UFX”, an online trading platform, run by a Cypriot company, Reliantco. After Reliantco terminated her UFX account, she issued proceedings in England alleging that it had done so wrongfully. Reliantco challenged jurisdiction by relying on its standard terms and conditions, which contained an exclusive jurisdiction clause in favour of the Cypriot Courts. Ms Ang argued that the special regime for consumers under Section 4 of Brussels Recast applied, such that she could sue in the courts of her domicile. The key question, therefore, was whether Ms Ang was a “consumer” within the meaning of those provisions.

The decision

The Court held that she was. In doing so, it rejected Reliantco’s submissions, which were partially based on Greek authority, that speculative investments with a view to financial gain were inherently business activities to which Section 4 could not apply.

Rather, the correct approach was to examine the purpose of the investment to determine whether it was undertaken as a consumer. In this case, Ms Ang was using her personal surplus wealth, as a private individual, in the hope of generating good returns. Notwithstanding her wealth and knowledge about Bitcoin, her contract with Reliantco was not entered into for business reasons.

Implications

This decision is a warning to online trading platforms that high net worth and relatively sophisticated investors in complex financial instruments can still be consumers. It remains to be seen, however, whether the CJEU endorses the High Court’s approach when it provides its upcoming judgment in Petruchova v Fibo Group Holdings Ltd (C-208/18), which concerns a similar issue.

Related Lawyers: Adam Jacobs
Related Practice Areas: Commercial Disputes

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