Contract Law

RULE 4.228 OF THE INSOLVENCY RULES 1986

NOTICE TO THE CREDITORS OF AN INSOLVENT COMPANY OF THE RE-USE OF A PROHIBITED NAME

THE HARLEY MEDICAL CENTRE LIMITED
(Company Number 01728619)
I, Melvin Braham, of 11 Queen Anne Street, London W1G 9LJ was a Director of the above named company on the day it went into administration. I give notice that I am acting and intend to continue to act in one or more of the ways to which Section 216(3) of the Insolvency Act 1986, would apply if the above-maned Company were to go into insolvent liquidation connection with or for the purposes of, the carrying on of the whole or substantially the whole of the business of the above-named Company under the following name: Aesthetic and Cosmetic Surgery Limited trading as the Harley Medical Group

Did you receive a notice from Mr. Melvin Braham, Mr. Pierre Guillot or Ms. Louise Braham, in the terms set out above?

Are you an Irish client of The Harley Medical Group, with PIP breast implants?

What is this notice, you ask?

Read on.

The Insolvency Rules

Under the Rules contained in the UK Insolvency (Amendment) Rules 2007, directors of companies such as The Harley Medical Centre Ltd. are obliged to publish a prescribed notice in the London Gazette

and

to notify every creditor of the company whose name and address is known [to the director] or is ascertainable by him on the making of such enquiries as are reasonable in the circumstances.

The Harley Medical Group was a trade mark of The Harley Medical Centre Ltd. of 11 Queen Anne St. in London.

The Harley Medical Centre Ltd. went into administration in the UK on 9th November 2012. The administrators sold some or all of the business of The Harley Medical Centre Ltd. to another company, Aesthetic and Cosmetic Surgery Ltd.

The “Harley” Notice

On 7th December 2012, Mr. Melvin Braham, Mr. Pierre Guillot and Ms. Louise Braham, all directors of The Harley Medical Centre Ltd. and also directors of Aesthetic and Cosmetic Surgery Ltd., published a notice in the London Gazette in the form seen HERE.

The Liquidation of The Harley Medical Centre Ltd t/a The Harley Medical Group

Subsequently, as it happened, The Harley Medical Centre Ltd. went into insolvent liquidation. (It also changed its name to THMC Realisations (2012) Ltd.)

Clearly, the “Harley” notice was intended to comply with the terms of the UK Insolvency (Amendment) Rules 2007 (seen HERE).

Did you receive the “Harley” notice?

McGarr Solicitors would like to hear from every Irish client of The Harley Medical Centre Ltd. to check the extent of compliance of Mr. Melvin Braham, Mr. Pierre Guillot and Ms. Louise Braham with the UK Insolvency (Amendment) Rules 2007.

EMAIL US!

We look forward to hearing from you by email at info@mcgarrsolicitors.ie

UPDATES:

The Harley Medical Group (Ireland) Ltd seek winding-up over implant claims
-8th April 2013
A report of the first day of hearing of the Harley Medical Group (Ireland) Ltd’s directors’ application to the High Court to wind up the company.

The Harley Medical Group and PIP Victims’ claims
- 24th April 2013.
Discussion of what evidence we have relating to the insurance policies covering the Harley Medical Group.

Harley Medical Group (Ireland) Ltd liquidation application
-29th April 2013
A report on the 2nd day of hearing of the Harley Medical Group (Ireland) Ltd’s application to the High Court to wind up the company.

The Harley Medical Group- who are they really?
- 30th April 2013
A discussion of the issue of corporate identity around the companies using the trading name The Harley Medical Group.

The Harley Medical Group- Did you get this Notice?
-02nd May 2013
In Nov/Dec 2012 PIP victims might have received a legal notice from the former directors of the UK company the Harley Medical Centre Ltd. If you didn’t, we’d like to hear from you.

This post concerns a matter returnable before the Irish High Court on 8^th April 2013.

A company named The Harley Medical Group (Ireland) Ltd. has applied to the court for an order compulsorily winding up the company. McGarr Solicitors, by order of the court, has been made a notice party to the application and has received copies of the application with its grounding affidavit and exhibits.

We are notice parties because we act for a number of women fitted in Ireland with PIP breast implants. These breast implants, notoriously, are substandard. They contain industrial grade silicone rather than medical grade silicone. They were manufactured in France but supplied to consumers in many jurisdictions.

One of the main suppliers in Ireland of PIP breast implants trades or traded as The Harley Medical Group from 5 Herbert Place, Dublin 2.

The Harley Medical Group is a trademark registered in the UK. It is owned by The Harley Medical Centre Ltd., a UK registered company, now in liquidation. The jurisdiction of that liquidation is the UK.

The Harley Medical Group (Ireland) Ltd. is a company formed in the British Virgin Islands and with its registered office there.

In its application to the High Court, it is, effectively, claiming that its “centre of main interest” (“COMI”) is Ireland. Specifically, it claims that it, (and, by implication, not The Harley Medical Centre Ltd.) was the supplier of services, (and PIP breast implants), to Irish women, from 5 Herbert Place Dublin 2.

It is not possible for us to disclose, in this post, our intended response to the application to the High Court.

However, we understand that the Court has directed the applicant company to disclose details of the insurance cover it had for claims such as those made by Irish women fitted with PIP breast implants.

We share the Court’s concern and interest in that topic and expect, in due course, to report our full response to the application, under the privilege attaching to court reports.

This is the appropriate editorial to replace that of the Irish Times of 2nd February 2013.

The blame for Ireland’s faulty beef burgers lies with the relevant Irish meat processors and, maybe, with someone in Poland. The testing of the burgers showed two pertinent facts; the animal source of the burger content and the proportion coming from each animal type. Of the tested burgers, most contained trace elements of horse and/or pig. One did not. That one burger, from Silvercrest Foods Ltd., revealed that Silvercrest’s meat constituent of the burger was one third horse meat. The other burgers, with traces of adulteration, were evidence of contamination, probably from the factory machinery. The machinery, in its turn, must have been contaminated by the very same source as the Silvercrest  burger; the meat the processors had put through the machines and into the burgers. The fact that there were traces only in those other burgers was not a relief; it simply showed the adulteration had passed through the factory and was, or had been, in an earlier burger production run.

Why did it take the Minister so long to discover Silvercrest’s meat sources led to, inter alia, Poland?

The fact that the public does not know the full facts relating to the adulteration of its food is the responsibility of the Minister for Agriculture and Food. It is unacceptable that the Minister persists in implying that unwittingly eating horse and pig meat is not a food safety issue. The public did not choose to eat horse or pig in the circumstances in which it ate those meats; the Minister is wrong to imply that the public does not know what is good for it, or that its loss of control over its food is not a big deal. Strictly, the Minister seems to think frozen burgers are fungible protein sources.

It is galling that Tesco is acting as the Minister should have acted; applying severe but appropriate sanctions to the guilty. Of what is Silvercrest guilty? It, reputedly, breached its contract with Tesco. It was limited under that contract to sourcing its meat from Irish or British suppliers. That contract would not have failed to stipulate that the meat was to be beef meat. When Silvercrest supplied Tesco it knew that the burgers, or some of them, were not in accordance with contract. Every such supply to Tesco involved a misrepresentation by Silvercrest. Unwittingly, presumably, Tesco in its turn misrepresented the contents of the burgers to its customers. In fact each of those misrepresentations was really a misrepresentation of Silvercrest to each consumer. Tesco was just a conduit of the falsehood. To suggest that this was a failure of quality control is, to be charitable, poor judgement. What Tesco describes as a “breach of trust” is clearly a breach of contract and a breach of Section 41 of the Consumer Protection Act 2007. It is an unsettled point whether it was also a breach of Section 42 of the Consumer Protection Act 2007.

It is disturbing that the Polish authorities are challenging the Silvercrest and Ministerial narrative of events. If Poland is not the source of the horse meat, what is the Minister going to do about that, resigning aside?

Noted in the Irish Times, 2nd February 2013, page 15.

 “With no evidence of fraud…”

This phrase means there was no evidence of deceit by Silvercrest Foods Ltd. There was in fact deceit. Tesco was deceived as to the sources of the burger meat; it described it as a breach of trust.

My online dictionary defines “fraud” as:

“a person or thing intended to deceive others, typically by unjustifiably claiming or being credited with accomplishments or qualities”

When the Food Safety Authority of Ireland tested a range of Irish frozen beef burgers, purchased from Irish and British supermarkets, it found evidence that they contained horse meat and/or pig meat.

It found that the source of the offending meat was the respective manufacturer of the beef burger. In the case of Silvercrest Foods Ltd. almost 30% of one burger constituted horse meat.

These facts were sufficient evidence to prosecute the various manufacturers (and the retailers).

Prosecutions are necessary because of the overriding objective of securing the safety of consumer food in the EU. If you are a manufacturer it is easy to ensure the safety of the food produced in your factory; you make sure that your sources are safe.If you fail to do this you should be prosecuted.

Under EU law Ireland is obliged to prosecute for breaches of EU law and the known facts were evidence of breaches of EU law and Irish law. The person responsible for ensuring there are prosecutions is the Minister for Agriculture and Food. That means there will be no prosecutions because he has shown he does not agree with the law.

He thinks that negligence is insufficient to get a conviction or even to bring a prosecution. He implies that proving knowing and deliberate adulteration of food is what is required to bring a prosecution and get a conviction but this is not and should not, be the case.

His is the latest in a long line of Irish failures. Ireland is an extreme example of a noted problem; regulatory capture. When a regulated industry (such as banking) exerts sufficient influence, its regulator becomes its champion and defender instead of its regulator.

Here we go again.

Horse meat: An additive to burgers. It is perceptible only by means of DNA testing and/or the use of an electron microscope (except in France where its very colour, taste and hooves trigger the little grey cells of French sleuths).

Money back Guarantee: If you return your complete horse meat beef burger, with its wrapping and a receipt, or other indubitable evidence of purchase from our supermarket, you will receive back your money that you paid to buy the burger in the first place.

Seriously: As in “…we take the safety of our products very seriously…”. We take offence if anyone challenges what we say about our products.

Statement: As in “…issued a statement…” A defence of Irish beef processors by the Minister for Agriculture and Food.

Additive: Stuff found in [Irish, possibly all] beef burgers.

Consumers: People who destroy evidence of wrongdoing by eating beef burgers.

Microscopic: The size of the horse meat portion of Irish beef burgers.

Label: A statement of our sincere beliefs about the contents of our burgers. (Also; A statement of affairs relayed to us by others and sincerely believed by us.)

Accidental: The finding of absence of fraud, malice or greed as will be reached by the investigation, the parameters of which are almost settled.

The Food Safety Authority of Ireland has analysed selected consumer products sold in Ireland. These products are probably also sold in the UK. By and large they were “manufactured” in Ireland.

The products are, allegedly, burgers made of beef meat. (1)

It is true, they contained some beef meat. However, they also contained some pig and horsemeat. The proportions varied from sample to sample.

There is one conclusion to be drawn from this; it is not wise to trust the meat processing industry. (We have always known this, butchers were traditionally excluded from serving on juries in criminal trials.) (2)

In fact we still do not trust the meat industry. Every meat processing plant has a vet in attendance. The vet is employed by the State and the vet’s job is to ensure that the plant is operated in accordance with law.

What else do we do?

Well, the FSAI survey is in fact a follow-up check of the output of the plant(s) and the State surveillance. Probably, we also assume that grocery multiples will try to ensure that the product they buy from meat processors is what the processors claim it is. (3)

What do we resolutely not do?

We refuse to empower the consumer to take effective action against such consumer abuse. We know that each individual consumer is helpless to take effective direct personal action. We also know that there are tried and tested remedies for consumers, if they act collectively, but in Ireland we will not permit that. No amount of Ministerial hand-wringing will be a substitute for permitting class actions in Ireland.

(1) Here, “allegedly” is appropriate. The wrapping on the burgers made allegations (known to lawyers as “representations”) about the products. Journalists need to be careful, but, when ABP’s Silvercrest Foods claims it is itself investigating the presence of horse meat in a burger it produced, that’s an admission about the horsemeat and the product. There is no need to be pusillanimous by saying the burger was alleged to have horse meat in it.

(2) Probably by lawyers; a man who kills animals is inured to death; he will not readily feel for a fellow human facing a death penalty.

(3) When I say “we” here, I mean the State, not the citizens.

A)            If an Irish tourist is injured by, say, a taxi in Rome, while crossing the street, any claim for compensation will have to be litigated in Italy. That, presumably, is the place where the taxi driver resides.

B)            If, as it might happen, the Irish tourist is injured in Rome by a hired car driven by a person from Ireland the claim for compensation may be taken in Ireland (being the place where the wrongdoer [or one of them] resides).

C)            If an Irish tourist is injured while driving a defective car hired by him in Rome (after he arrived there), due to the defect, any claim for compensation will have to be litigated in Italy. That, presumably, being the place where the car hire company resides.

Each of the cases above is an instance of the basic rule in EU law; the defendant is entitled to be sued in the place where he resides (or the place of the performance of the contract).

There are exceptions to the basic rule. The significant exception, for tourists (who are almost always “consumers”) arises where the tourist has booked a “package holiday”.

“Package [holiday]” is defined in Section 2 (1) of the Package Holidays and Travel Trade Act 1995.

“”package”, subject to subsection (2), means a combination of at least two of the following components pre-arranged by the organiser when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation—

( a ) transport;

( b ) accommodation;

( c ) other tourist services, not ancillary to transport or accommodation, accounting for a significant proportion of the package;”

Section 20 of the Act makes the organiser liable for “the proper performance of the obligations under the contract”;

“20.—(1) The organiser shall be liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the organiser, the retailer, or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services.”

Normally, a package holiday is booked in the tourist’s home country. Even is this is not the case, where the organiser directed his “activities” to the consumer’s home state the consumer is, as an exception to the basic EU rule, entitled, in both cases, to litigate disputes arising, in the tourist’s home state.

Of course the dispute must relate to “the proper performance of the obligations under the contract”.

So, if a consumer of a package holiday is injured abroad, consequent on a failure to properly perform the obligations of the package holiday contract, the consumer may issue proceedings in Ireland seeking compensation.

What are the “the obligations under the contract”? Read the contract. That reveals the explicit obligations. In addition, it is implicit that the persons supplying the services will do so competently and with proper premises and materials. That means that injuries from food poisoning, or road accidents caused by the negligence of drivers or mechanics are all suitable to be litigated under the 1995 Act, conditional on those services causing the injury being part of the “obligations under the contract”.

It is often possible to buy “add-on” excursions when in the package holiday destination. By definition, these are likely to be outside the scope of the package holiday.

The main problem with defective DePuy hips is the design failure. The hip will fail mechanically. This is a serious matter. Instead of ease of movement, the hip will hinder movement. Movement will be painful, probably noisy, and anything but smooth.

The victim may also suffer “metallosis” from the microscopic particle of metal shards leaking from the working surfaces of the hip sections. Long before such a consequence is suffered, the shedding of metal can be detected by testing of the victim’s blood.

The testing is for traces of chromium and cobalt.

These occur naturally in humans; they are to be found in normal healthy diets. However, in excess they are dangerous; particularly when they take the form of many minute metal fragments, as they do when leaking from the DePuy defective hips.

DePuy hip victims need to apply commonsense to the DePuy hip scandal. What will commonsense tell them?

They will know:

A)            That they have excessive, abnormal and dangerous levels of cobalt and chromium in their blood;

B)            That it is now, or soon will be, necessary to have one or more defective DePuy hips removed from their body;

C)            That these circumstances will cause them pain and suffering of indeterminate extent and duration;

D)            That no compensation will be given to them by anybody who is not compelled to do it;

They can get more commonsense, if they need it, from their legal advisors:

1)             Will the litigation be quick and easy? No. No litigation is quick and easy;

2)             Will it be impossible to succeed? No. Liability is not a major issue. DePuy are already offering payments to deter resort to litigation.

3)             Will it be expensive? Yes. All litigation is expensive.

4)             How expensive? Less expensive than C) above.

5)             What is the big issue in the litigation? Proof of damage.

Legal advisors will, or should, advise that the urgent issue is to commence the litigation. This is necessary to stop time running under the Statute of Limitations. Plaintiffs in personal injury actions have only two years within which to issue their claims in court. If they miss the deadline their right to litigate is extinguished. See our post on the subject HERE.

It is essential to know that the Injuries Board has no role in the DePuy hip scandal. If a victim lodges an application to the Injuries Board, it is a mistake. The Injuries Board will, in due course, reject it. Worse than that, time will continue to run against the plaintiff while the application is being made and considered. In short, it is a waste of valuable and scarce time.

There are excellent arguments to show that for some, possibly many, people time has not yet started to run and therefore cannot expire. The problem with those arguments is this; it is possible to lose the argument. The loss of that argument is a very expensive loss. Everything should be done to avoid having to make the argument in the first place. In short, issue the proceedings.

It is not necessary to know the full extent of the loss to properly issue proceedings.

Issue first and measure afterwards.