Kaye v Nu Skin UK Ltd (Rev 1)

Kaye v Nu Skin UK Ltd (Rev 1)

There is a real issue to be tried as to whether the arbitration clause, particularly the requirement for arbitration in Utah, was onerous or unusual and whether it was fairly and reasonably brought to the claimant's attention; the judge erred in not allowing further evidence on this issue. The appeal succeeds on this ground only.

Parties
Claimant/appellant: Sophie Kaye; Defendant/respondent: Nu Skin UK Limited
Jurisdiction
England and Wales
Judgment Date
11 November 2009
Procedural Posture
Civil Appeal / Appeal From Order Staying Proceedings Pending Arbitration
Outcome
Appeal allowed on first ground only; directions to be made for trial of the issue.
Legal Topics
Incorporation of Arbitration Clauses, Unfair Contract Terms, Stay of Proceedings, Consumer/commercial Contracts
Contract Law Arbitration Incorporation of Arbitration Clauses Unfair Contract Terms Stay of Proceedings Consumer/commercial Contracts

Case Brief

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Parties

Sophie Kaye

Claimant/appellant

Nu Skin UK Limited

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From Order Staying Proceedings Pending Arbitration

Legal Issues

  1. 1 Whether the arbitration clause was incorporated into the distributor agreement and binding on the claimant
  2. 2 Whether it is fair or conscionable to hold the claimant bound by the arbitration clause requiring arbitration in Utah
  3. 3 Whether the defendant is estopped from relying on the arbitration clause due to representations about governing law

Ratio Decidendi

There is a real issue to be tried as to whether the arbitration clause, particularly the requirement for arbitration in Utah, was onerous or unusual and whether it was fairly and reasonably brought to the claimant's attention; the judge erred in not allowing further evidence on this issue. The appeal succeeds on this ground only.

Court Disposition

Appeal allowed on first ground only; directions to be made for trial of the issue.

Orders

  • Stay of proceedings set aside pending determination of whether the arbitration clause was incorporated and binding.
  • Directions to be given for trial of the incorporation and fairness issue.