A student resident in Germany who undertook a distance learning programme at a Scottish university could only be sued for tuition fees in Germany, the contract being a consumer contract despite the student's business interest in taking the course, a sheriff has ruled.
Sheriff Nigel Ross at Edinburgh Sheriff Court dismissed an action by Heriot-Watt University against Christian Schlamp, upholding the defender's plea of no jurisdiction. The defender, who was domiciled and resident in Germany, enrolled on a Doctor of Business Administration course with the pursuers. He completed the course but was in dispute with the pursuers over part of the fees due.
The pursuers claimed that there was a contract for services, which were provided at their premises, and the court had jurisdiction on the basis of place of performance. The defender argued that as the contract was a consumer one, the action could only be based on domicile. The pursuers averred that the defender undertook the course for reasons closely connected to his self-employment as a consultant in finance and business administration, and described himself as such in his application. The study was for a business purpose, and the defender did not meet the criteria for a consumer in the Civil Jurisdiction and Judgments Act 1982, as amended.
Sheriff Ross considered that the pursuers' averments were "compatible with the defender acting as a consumer. Taken at their highest, they do not exclude that status".
He gave as reasons that there were no averments to show that the defender contracted in anything other than a personal capacity, or that any business had an interest in his studies; that it was common for students to seek education in order to promote themselves in the employment market, and that did not of itself remove them from the category of consumers; that the contract was one for provision of educational services, and the defender was not in a position to negotiate terms with the pursuer, thus making him a consumer; the pursuers had no interest in the defender's profession or what he did with his doctorate; and even if a statable case had been pled, having regard to the terms of the Act, where it was not clear whether the predominant purpose of the contract was for consumer services, the court had to regard to the contracting party as a consumer.