Kaye v Nu Skin UK Ltd (Rev 1) [2009] EWHC 3509 (Ch) (11 November 2009)

Kaye v Nu Skin UK Ltd (Rev 1) [2009] EWHC 3509 (Ch) (11 November 2009)

There is a real issue as to whether the arbitration clause requiring arbitration in Utah was onerous or unusual and whether it was fairly and reasonably brought to the claimant's attention; further evidence is required to determine this. The appeal succeeds on this ground, and the matter is remitted for determination of this issue. The other grounds of appeal fail.

Citation
[2009] EWHC 3509 (Ch)
Parties
Claimant/appellant: Sophie Kaye; Defendant/respondent: Nu Skin UK Limited
Jurisdiction
England and Wales
Judgment Date
11 November 2009
Procedural Posture
Appeal / Appeal From Order Staying Proceedings Pending Arbitration
Outcome
Appeal allowed in part
Legal Topics
Incorporation of Arbitration Clauses, Unfair Contract Terms, Estoppel, Jurisdiction, Standard Form Contracts
Contract Law Arbitration Consumer Law Incorporation of Arbitration Clauses Unfair Contract Terms Estoppel Jurisdiction Standard Form Contracts

Case Brief

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Parties

Sophie Kaye

Claimant/appellant

Nu Skin UK Limited

Defendant/respondent

Procedural Posture

Appeal / Appeal From Order Staying Proceedings Pending Arbitration

Legal Issues

  1. 1 Whether the arbitration clause requiring arbitration in Utah was incorporated into the distributor agreement and binding on the claimant
  2. 2 Whether it was unconscionable or unfair to enforce the arbitration clause against the claimant
  3. 3 Whether Nu Skin UK was estopped from relying on the arbitration clause due to representations about English law governing the contract

Ratio Decidendi

There is a real issue as to whether the arbitration clause requiring arbitration in Utah was onerous or unusual and whether it was fairly and reasonably brought to the claimant's attention; further evidence is required to determine this. The appeal succeeds on this ground, and the matter is remitted for determination of this issue. The other grounds of appeal fail.

Court Disposition

Appeal allowed in part

Orders

  • The appeal is allowed on the first ground; the issue of incorporation and fairness of the arbitration clause is to be determined with further evidence.
  • The other grounds of appeal are dismissed.