There is no intention by the government to introduce legislation to block access to the Internet or sites. I have state that unambiguously.

— Seán Sherlock (@seansherlocktd) January 24, 2012

For all blocking methods circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users.

-“Site Blocking” to reduce online copyright infringement, OFCOM Report,22nd May 2010

The law in this area is extremely complex, particularly since the European Court of Justice has given an important decision restricting the use of blocking in the meantime. That decision found that filtering would be impermissible if it undermined freedom of expression and blocked lawful communications – something that is inevitable if this proposal is adopted.

- Ireland’s SOPA: an FAQ, TJ McIntyre, 23rd January 2012

JUNIOR MINISTER SEÁN Sherlock has this afternoon confirmed that the controversial statutory instrument that reinforces online copyright laws in Ireland has been signed into law.

- Sherlock confirms that ‘Irish SOPA’ has been signed into law, The Journal, 29th February 2012

22. Mr. McIntyre goes on to point out that under s. 2 of the European Convention on Human Rights Act 2003, this Court is under a duty to interpret and apply any statutory provision or rule of law insofar as is possible in a manner compatible with the State’s obligations under the European Convention on Human Rights. This, he says, is a duty which exists independently of any point raised by the parties in a matter where non-parties are affected. The applicant is therefore concerned to assist the court in addressing the requirements of the European Convention on Human Rights in the context of internet filtering.

Judgment refusing Amicus status to Digital Rights Ireland Ltd, EMI and Ors -v- UPC and Ors, Mr Justice Kelly, 3rd May 2013

Notwithstanding his [Charleton J.] having concluded that a blocking injunction in the manner sought was not available in Irish Law, he went on to state at para. 1.34:-

“Were it available, I would grant it.”

The lacuna referred in that judgment has been filled by S.I. No. 59 of 2012, the European Union (Copyright and Related Rights) Regulations 2012 which inserted s. 40(5A) into the Copyright and Related Rights Act 2000 (“the Act”).

- Judgment in EMI and Ors -v- UPC and Ors, Mr Justice McGovern, 12th June 2013

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The PRISM leaks will come to be seen as one of the most significant stories of the year.

The response of the various branches of Government in the US is to simultaneously hold that the leaks aren’t news at all- that they don’t tell the public anything they didn’t already know- and at the same time to decry the leaker for risking the very security of the USA by revealing state secrets.

Leaving aside the question of how both these things can be true, I thought I’d think about who, in Ireland, has been given access to the trove of personal data being held by telecommunication companies under the Communications (Retention of Data) Act 2011.

Section 6 of the Act empowers certain officers of An Garda Siochana, the Defence Forces and the Revenue Commissioners to gain access to the records which show everywhere you’ve been, who you met, who you called, when and how often you call (or text), what web pages you look at and so on.

Though I consider that section to be drafted very broadly, they are subject to oversight -however cursory- by a judge.

But a careful reader will notice that the Disclosure powers granted by S6 are not stated to be the only possible conditions for disclosure. Nor does S6 of the Act state that those designated officials are the only people who may access the Snooper’s Gold. (See below for UPDATE on this point)

All through the State’s history, it has been considered a good idea to put into legislation powers to compel the disclosure of any and all records that might help an official to do their business. Of course, what was mainly being imagined when those provisions were passed was a bundle of documents in a buff-coloured file, held together with a fraying treasury-tag.

Nonetheless, the powers remain on the books. Let’s do a search for the phrase “any records” in the Irish Statute Book.

Well, that’s quite a haul. Straight away, we can see that Section (64) (2) of the Nurses and Midwifes Act 2011 gives the members of a Fitness to Practice Committee the power to enforce “the attendance of witnesses and compelling the production of records”. There is no reason why such a summons should not be issued against a phone operator or ISP if the Fitness to Practice Committee thought it relevant.

Similarly, Section 45 (1) of the Nursing Home Support Scheme Act 2009 permits officials from the Health Service Executive to gain access or a copy of any relevant records for the purposes of helping them to evaluate an application.

Section 45 (11) helpfully defines a relevant record.

“relevant record” means any record which will or may assist the Executive to determine an application for State support or a request for refundable State support.

So, if for some reason a HSE official- of no particular rank- thinks it may be helpful in assessing your application for Nursing Home Support to know where you and your family members have been for the last two years off they may go to your phone company to find out.

The members of a Medical Council Fitness to Practice Committee of inquiry may, like the Nurses and Midwifes committee compel a witness to attend with any records, per Section 64 (1) (c).

Section 30 (1) of the Marine Shipping (Investigation of Marine Casulalties) Act 2000 empowers a person (described in Section 16(1) of the act as “such consultants, advisers and investigators (including investigators nominated by the Chief Surveyor from the Marine Survey Office of the Department of the Marine and Natural Resources) as it considers necessary for the performance of its functions”) investigating a marine casualty.

If they think there’s a record

“necessary for the purpose of an investigation the investigator may require a person to deliver to a place nominated by the investigator, and within such reasonable period as the investigator specifies, any record, to enable the investigator to inspect and copy it, and the person shall comply with the requirement”

And so on. I think the point is made.

The creation of the Data Retention honey pot has allowed a wide array of people – at all levels of state machinery- to potentially gain access to the most intimate details of our lives. Who we talk to, where we go, who we meet when we get there and so on. Are you applying for financial help under the Nursing Home Scheme? Then a HSE official can see if you have been at an Airport in the last two years. If so, well, were you going on holiday?

The debate about what is an appropriate level of access- maybe it is proper that a private citizen nominated to investigate a marine casualty should gain access to other citizen’s details- can only happen when we know what is going on.

I don’t know whether a HSE official ever has compelled the production of an individal’s personal data in considering an application under the Nursing Home Support scheme. But I do know that eventually one will if empowered to do so.

Personally, given what the Data Protection Commissioner has already revealed about the propensity of Dept of Social Welfare officials to engage in inappropriate access of the -far less revealing- trove of data held in the Department’s database I would prefer if, at the very least, the same level of judicial oversight which applied to the Gardaí and the Army applied to HSE officials.

UPDATE: It has been pointed out to me in comments that Section 5 of the Act does seek to limit the circumstances when service provider may access the data retention trove.

It reads:

However, this does not mean that none of the above powers will apply. The investigatory committees, for example, are explicitly granted the powers to issue order equivalent to court orders by their respective acts. And section (d) seems to leave the Data Protection Commissioner as the arbiter of what is a legitimate request under all other provisions.

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This is the Judgment of Ms. Justice Laffoy to the Application by the Harley Medical Group (Ireland) Ltd to be wound up by the Irish High Court.
Despite its name, The Harley Medical Group (Ireland) Ltd is not an Irish company, but a company incorporated in the British Virgin Islands.

We act for 20 Irish clients of The Harley Medical Centre Ltd. It traded at many clinics in the UK and had one clinic in Dublin at 5 Herbert St. Dublin 2. Our clients attended the Dublin clinic.

Our clients have personal injury and other claims against The Harley Medical Centre Ltd. arising from, inter alia, the breach of contract of The Harley Medical Centre Ltd. in supplying unmerchantable goods to our clients.

This application by the Harley Medical Group (Ireland) Ltd was the first application by a non-EU company to an Irish Court for a winding up order under the current legal regime.

The Court rejected the assertion by the Harley Medical Group (Ireland) Ltd that the EU Insolvency Regulation did not apply to this application.

“The primary ground of Opposition advanced by counsel for the Opposing Creditors was that the Court does not have jurisdiction to make the winding up order, because the Insolvency Regulation applied to the Company and its centre of main interests is not in this jurisdiction.

Counsel for the Company characterised the submissions made on behalf of the Opposing Creditors as having been made in a “closely reasoned” manner. I would go further; those submissions put this Court on the right path.”

- Paragraph 10 of Ms. Justice Laffoy’s Judgement

Effect on claims

McGarr Solicitors was the only firm who, at hearing, opposed the making of a winding up order on behalf of their clients.

The Harley Medical Centre Ltd. supplied our clients, on various dates, with PIP breast implants. PIP breast implants are acknowledged to be defective. They rupture at a rate above the “industry” norm and are filled with industrial grade silicone, rather than medical grade silicone.

It is important to note that no winding up order has yet been made against the British Virgin Islands company. The Plaintiff’s legal petition was found not to contain the necessary statements which would permit such an order to be made.

The Court has ordered that a winding up order will only be granted subject to the Harley Medical Group (Ireland) Ltd filing a further, compliant, petition and another affidavit swearing to the truth of the amendments.

For women who were supplied with PIP breast implants, this winding up process has confirmed the existence of multiple Insurance Policies covering the British Virgin Islands company for certain kinds of claims in certain years. It is quite possible that further insurance policies exist, which were not disclosed to our firm. The Directors of the Harley Medical Group (Ireland) Ltd did not deny that this was the case.

In addition, claims against the Harley Medical Centre Ltd, a UK company which traded out of 5 Herbert Place, Dublin, are unaffected by this judgment.

The Court’s Judgment

The essence of the judgment is as follows:

1. The Court found that the legal arguments of McGarr Solicitors (for some Harley PIP breast implant victims) were valid. Consequently, the Insolvency Regulation applies to the Harley petition to be wound up by the court;
2. The Court found that the “centre of main interests” (“COMI”) of The Harley Medical Group (Ireland) Ltd. was not in the British Virgin Islands and was in Ireland. Consequently, the court found it had jurisdiction to wind up The Harley Medical Group (Ireland) Ltd.
3. The court found that the Harley petition was deficient, as was the grounding affidavit of The Harley Medical Group (Ireland) Ltd. Consequently the court adjourned the application to permit The Harley Medical Group (Ireland) Ltd. to amend the petition and grounding affidavit to comply with Order 74, rule 7.

We are considering this judgment and will making any submissions arising from it to the Court at the next hearing date of the 29th May 2013.

Harley Medical Group (Ireland) Ltd Application for Winding up Judgment 16 May 2013

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McGarr Solicitors opposed the application before the High Court (the only firm of solicitors, representing Harley PIP breast implant victims, to do so).

Judgment will be handed down in Crt No. 3 in the Four Courts at 2.00 pm.

To attend the event, (which will last 10 minutes at most) enter the Four Courts through the front door (with the big pillars) and, in the Round Hall, immediately turn left to see the door to Court 3.

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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

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The Crime

1. The PIP criminal trial is currently at hearing in France.
2. McGarr solicitors act for a number of women victims of the PIP scandal. The scandal was the distribution and sale of sub-standard silicone breast implants. This post is a partial explanation of the current position of Irish PIP victims and related Irish legal activities.

The Harley Liquidation

1. The Harley Medical Centre Ltd. went into administration and then liquidation (and changed its name). This has all happened in the UK under the insolvency law of that jurisdiction.
2. The administrator promptly sold the business to, it appears, the shareholders of The Harley Medical Centre Ltd. and they have continued the business in the same premises using a new company. That company is continuing the use of the trade name The Harley Medical Group. Its directors are the defunct directors of The Harley Medical Centre Ltd.
3. There was an exception to the plan; the exception was in Dublin. The Harley Medical Centre Ltd. had a clinic at 5 Herbert Place in Dublin 2. We know this because it said so on its website. There was and is a plaque, effectively saying so, attached to the wall outside 5 Herbert Place. In addition, the contracts signed by Irish Harley customers stated that the contract was with The Harley Medical Centre Ltd.
4. It now appears that the leasehold interest in 5 Herbert Place Dublin 2 was held by another company, The Harley Medical Group (Ireland) Ltd. Despite its name, this company was formed and registered in the British Virgin Islands.

The Harley Medical Group Dublin Liquidation

1. Now, this company also wishes to be liquidated. It had directors in common with The Harley Medical Centre Ltd. In other words, the two managements were the same.
2. It has chosen to apply for liquidation in Ireland, in the Irish High Court. In doing so it has claimed, in sworn testimony, that it is the entity that carried on the medical business conducted at 5 Herbert St. Dublin 2.
3. This is confusing. It also creates uncertainty; uncertainty as to the identity of the corporate body answerable to Irish Harley PIP victims.
4. Because The Harley Medical Group (Ireland) Ltd. made this claim to the High Court, the court directed that McGarr Solicitors (and other firms also) be put on notice of the petition to wind up The Harley Medical Group (Ireland) Ltd. McGarr Solicitors act for a number of Irish Harley PIP victims.

The Opposition to the Harley Dublin Liquidation

1. McGarr Solicitors have opposed the making of a winding up order for The Harley Medical Group (Ireland) Ltd.
2. In the UK, persons such as Harley PIP victims may, under UK law, apply to enforce their claims against any relevant insurance company carrying the Harley risk. This is not the case in Ireland.
3. So, if there is insurance cover for claims such as the PIP claims, and if each victim can prove damage and loss, it would be important to be able to make a claim against that insurer of Harley.
   
4. But which Harley would be the insured Harley? This question illustrates the damaging effect of the claim of The Harley Medical Group (Ireland) Ltd. Its claim that it is the company that sold and fitted defective breast implants to Irish women at least potentially undermines the right of those women to claim against the UK insurer of The Harley Medical Centre Ltd.
5. As it happens, the claimed, indeed assumed, “right” of The Harley Medical Group (Ireland) Ltd. to be wound up by the Irish courts is not obvious. It is not obvious because Irish law includes EU law and under the relevant EU law the available evidence shows that the place where The Harley Medical Group (Ireland) Ltd. might more properly be liquidated is the UK and not Ireland.
6. The available evidence shows, for instance, that the headed notepaper of The Harley Medical Group (Ireland) Ltd. recited that it had nineteen clinics, eighteen of which were in the UK. Oddly, they appear to be the same clinics that The Harley Medical Centre Ltd. had.
7. As it further happened, the lawyers for The Harley Medical Group (Ireland) Ltd., in submitting the petition to wind up The Harley Medical Group (Ireland) Ltd. denied that the EU insolvency regulation applied to The Harley Medical Group (Ireland) Ltd. and its petition. McGarr Solicitors disagree. We say the Regulation applies. We say that the available evidence establishes where the “centre of main interests” (“COMI”) for The Harley Medical Group (Ireland) Ltd. is, and its COMI is in the UK. Consequently, we say, the Irish high court does not have jurisdiction to wind up The Harley Medical Group (Ireland) Ltd. in “main proceedings”. That privilege lies with the UK courts. (Consequently, Irish PIP victims would then have the benefit of UK law and would be able to press any necessary claims against the insurance companies of The Harley Medical Group (Ireland) Ltd. as well as the claims against the insurers of The Harley Medical Centre Ltd.).
8. These are the questions now being decided by the Irish High court. Judgment is expected in about a week.
9. Meanwhile, we are continuing our investigations of the insurance cover bought by The Harley Medical Centre Ltd. We are doing this through correspondence with the liquidator of The Harley Medical Centre Ltd. Currently we believe that company was insured against claims such as those of Irish PIP victims. We have identified what we believe is the policy and the insurer that carried that risk

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Harley Medical Group (Ireland) Limited is a company registered in the British Virgin Islands.

About a month ago, we were notified by McCann Fitzgerald, solicitors for the Harley Medical Group (Ireland) Limited of their client’s application to the High Court in Dublin seeking to wind up the company.

As solicitors representing women suffering as a result of having been supplied with faulty PIP breast implants by the Harley Medical Group, we were made notice parties to that application at the direction of Judge Laffoy in March.

Today and last week we were the only solicitors for PIP recipients who turned up to represent their clients in the hearing of this application.

Our counsel argued that the Centre of Main Interests (called the COMI) of the company was not in Ireland and was probably in the UK. He also argued that the Harley British Virgin Islands company had failed to take account of the EU’s Insolvency Regulation in applying for a winding up in Ireland.

He cited, as evidence of our contention that the real COMI was the UK, the fact that the Harley Medical Group used the year of establishment of the UK company on its brass plaque at its Dublin office, that the contracts with its patients cited the UK company as the contracting party and that the UK website cited Dublin as just one of 19 clinics, with all the rest being in the UK.

This is significant because, if we are successful in our argument, Harley’s application to be wound up in Ireland will be declined and, logically, the Harley company should seek to be wound up in the UK instead. That would be of benefit to PIP victims, because the UK has laws allowing injured parties to directly sue the insurance companies of liquidated companies for compensation.

At the end of our submissions, counsel for Harley Medical Group (Ireland) Ltd made some short points in response, acknowledging he was answering a tightly argued legal case.

The Judge reserved judgment, which is expected within the next two weeks.

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This is not the first time this matter has been before the Court. In March Ms. Justice Laffoy ordered that a number of parties- including our office- be put on notice of the application. In addition, further details of the company’s insurance arrangements were to be furnished.

PIP Victims

We were placed on notice because we represent a group of women who were customers of the Harley Medical Group and received faulty breast implants made by a French company called PIP. The implants were made with industrial grade silicone (apparently intended, by the silicone factory, to fill mattresses, amongst other things) rather than the medical grade silicone  of which they were held out to be made.

After receiving a copy of the petition to wind up The Harley Medical Group (Ireland) Ltd. (and other papers) we requested details of its insurance arrangements. To date we have not received the full complement of relevant insurance documents.

In the absence of the relevant documents it is not possible for us to definitively say that The Harley Medical Group (Ireland) Ltd. was not insured for claims such as those of PIP victims.

Likewise, it is not possible for The Harley Medical Group (Ireland) Ltd. to claim that it has demonstrated that it was not so insured.

Harley Medical Group Insurance

Insurance cover by The Harley Medical Group (Ireland) Ltd. (and its UK associated company, The Harley Medical Centre Ltd.) for PIP claims (and the enforcement of such cover) is important for PIP victims. It would greatly ease the enforcement of PIP victims’ claims (and the recovery of compensation after the conclusion of litigation for the PIP victims injuries and losses).

It is important to know this:

a) enforcement of the PIP claims is done by each PIP victim;

b) enforcement of the Harley insurance cover is done by the relevant Harley company;

Even in the absence of all the relevant insurance documentation we believe that The Harley Medical Group (Ireland) Ltd. had applicable insurance cover for PIP type claims for the year 2005/2006. It is very likely that such cover was in place for other years, possibly extending right up to March 2010, at which time The Harley Medical Group (Ireland) Ltd. officially learned of the PIP scandal.

The winding up petition is being opposed by us on the ground that The Harley Medical Group (Ireland) Ltd. has its Centre of Main Interest in the UK (and should be wound up there).

The hearing of the petition commenced on 22^nd April 2013 and will continue next Monday (29^th April 2013) on which date the documents and supporting legal authorities opposing the granting of the petition will be opened to the court.

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Just a quiet little note about Data Protection- a subject I frequently refer to but haven’t addressed directly.

Usually, any mention I do make about Data Protection is concerned with how to use the Acts as a tool to extract information you want. The legislation is certainly useful for that- though after a decade of using them, Data Access Requests still seem to arrive as a shock to their recipients. But it’s worth remembering that those tools were created in the service of a principle.

That principle is pretty straightforward: You are an autonomous person, deserving of respect and dignity. You are not a commodity to be bought, sold or traded without consent. And, if we accept that information about ourselves- our reputation- is a part of who we are, then it follows that ought not to be commoditised either.

That statement of principle needs to be restated and reinforced whenever it can be. It requires us all to take on quite a lot of responsibility for ourselves. If we’re to be asked how we’re willing to allow our data to be used- as opposed to allowing companies to trade it how they like, without us even knowing- we can expect to have to make a lot more decisions.

That pressure of being asked to make decisions over and over again in a week takes a toll. Barack Obama buys multiple identical suits and alternates wearing them just to avoid having to make an extra decision in his day.

But if we’re going to hold to the core principle of Data Protection- that we are the owners of the stories of our lives- we’re going to have to get used to deciding what we want that story to be and who we want to share it with.

And I think we should appreciate anything that recognises we have a right to be the author of our own lives.

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I have recieved a response to that request on NNI headed paper (albeit one which will be the subject of future correspondence).

However, as part of that response came the following assertion;

“Your access request was addressed to “Mr Frank Cullen trading as National Newspapers of Ireland”. Please note that Mr. Cullen does not “trade as” National Newspapers of Ireland.”

I found this a mysterious statement. After all, if you do a search in the Companies Registration Office you find that the National Newspapers of Ireland is not a company registered with the Irish CRO. And their own headed paper on which that assertion was printed doesn’t cite any body corporate for the NNI.

However, the Companies Registration Office search does reveal that the National Newspapers of Ireland (NNI) is a registered trading name of an individual- Mr. Francis Malachy Cullen. You may see a copy of this printout below.

If “Mr. Cullen does not “trade as” National Newspapers of Ireland” as the letter states, who does?

Business Name Printout for National Newspapers of Ireland (NNI) by Simon McGarr

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