High Court

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 matter was returnable today for directions by Mr. Justice Kelly in the Commercial Court.

The High Court Record Number of this matter is 2012/12381.

Mr. Ronan Lupton BL, appearing on behalf of Digital Rights Ireland Ltd and instructed by McGarr Solicitors applied to the court for leave to serve a Notice of Motion, together with grounding affidavit, seeking to intervene in these proceedings as a friend of the court, or Amicus Curiae.

The court set a date for the hearing of this Motion of the 25th February 2013 at 2pm. Written legal submissions to be filed and served by the 8th February 2012.

No party objected to the application.

This matter was returnable today in Court 1 on a Motion for Entry before Mr. Justice Kelly.

The High Court Record Number of this matter is 2012/12381.

Mr. Cian Ferriter SC appeared in the matter for Vodafone and Mr. Gerard Kelly of Matheson Solicitors appeared for UPC and others.

Mr. Jonathan Newman BL appeared for the Plaintiffs.

The Court directed that the matter be returned for the 29th January for directions and any required motions.

The parties are to meet in advance of the 12 January 2013 and correspond by the 14 January 2013.

There was some brief exchange regarding the state of the issues between the parties.

It was indicated to the court that the Plaintiffs were seeking to have more than one website blocked. It was mentioned that the Plaintiffs had a list of 260 websites they had identified as being objectionable.

The Court mentioned that there may be a more detailed review by the Court required, given that the S.I. was being invoked for the first time.

Both parties seemed to indicate that matters would probably be best dispatched by Affidavit.

Each relevant day the Legal Diary carries this message;

“With effect from Thursday the 1^st December 2011 the following arrangements will apply to all cases listed in the Dublin Personal Injuries List. Cases not assigned to a judge for hearing on the day on which they are listed will roll over from day to day until the end of that week. Any cases not reached or commenced at the end of a week will be dropped from the list and will require, in due course, an application to be made for a new hearing date in the usual manner. All Specially Fixed cases and cases afforded priority will retain priority over other cases and will be assigned for hearing in the order in which they appear in the list. All other cases will be assigned for hearing at random each day and not in the sequence in which they appear in the list….. Parties must notify the Court if an Action is likely to take more than four days for hearing.”

The trial of any High Court personal injury action is a complicated project. Like all cases, it is a contest between the Plaintiff and the Defendant. In some cases much will have been agreed or conceded; in others everything will be in issue.

The trial must be run in accordance with the rules of evidence. So, in the absence of agreement, a Plaintiff must prove the injury and its extent and consequences and that the Defendant caused it. The second of those issues is the liability issue, the first is the quantum issue. Sometimes the quantum issue is a liability issue; the Defendant may not dispute that the Plaintiff is suffering some health problem but may dispute that the Defendant caused the health problem.

In these circumstances the Plaintiff will have to bring his/her doctors to court to give evidence and be cross-examined. (Of course, the Plaintiff will also be giving evidence of, at a minimum, his/her injuries.)

Doctors are busy people, some more than others. A doctor may be habitually in surgery, working long and erratic hours. Nonetheless, when requested to attend court to affirm the contents of a medical report, the doctor has a professional duty to attend.

But when? The quoted notice sets out the position; no ordinary personal injury case listed for hearing in the High Court is assured a hearing, not to speak of a hearing date. But, the Plaintiff must turn up on the date the case is listed. The Plaintiff must be ready to prove the case. Then the court system fails the Plaintiff. There are no judges available to take any of the listed cases. Even if there is a judge, each case is put into a lottery to see which case(s) will go the available judge(s).

Not to worry, there is always tomorrow. Indeed, but what about the witnesses? They presumably made arrangements to drop work promptly on getting the call from the Plaintiff’s solicitor and go to court in accordance with some scheduling scheme of very delicate construction (because it is difficult to estimate for how long a prior witness will be giving evidence).

And what of the Plaintiff and his/her supporters/relations? They have to put their employment on hold. But read the notice; the case will roll over from day to day to the end of the week. So the time out from ordinary mundane life lasts just a week (less one day; Monday is exempt from trials).

Who pays for these waiting days? The Plaintiff must pay, because the Defendant will not be obliged to pay for the delay. It was, after all, generated by the Courts Service, you might think.

In the view of this writer you would be wrong. It is wrong to think that every personal injury action must have a trial. This is impossible; there are not enough court resources (judges, courtrooms etc.) to deliver this in fact.  So, the system must be one that achieves settlements acceptable to Plaintiffs and Defendants. A system which establishes principles of liability, and quantum values, is the required system. If a Defendant knows that the system will deliver a judgment for the Plaintiff and knows what the compensation for the Plaintiff is likely to be only two issues remain to be vouchsafed; that the costs will increase with the passing of time and that those costs will have to be met by the Defendant.

That is the system that currently is missing in the Irish High Court and that explains the notice in the Legal Diary.

How can a defendant harass a plaintiff? By bringing a motion to court. The motion will seek orders within the terms of Section 10. Under Section 14 of the Civil Liability and Courts Act 2004 http://www.bailii.org/ie/legis/num_act/2004/0031.html#partii-sec14 a plaintiff must swear, serve and file an affidavit of verification of the pleadings served. This implies that no insufficiency of pleading, if it exists, can be defended. After all, what was pleaded must be true. Is the plaintiff playing fast and loose with the truth?

The upshot of all of this is clear. Before the plaintiff’s case comes on for trial, the plaintiff will have discharged his/her burden of proof. That burden of proof is not the usual proof on the balance of probabilities. It is proof beyond a reasonable doubt. This is uniquely the burden of claimants for personal injury. No other plaintiff must reach this standard of proof.

The Civil Liability and Courts Act 2004 was, clearly, calculated to benefit the defence interest in personal injury litigation. That it is not even handed is clear.

The consequences are also clear. The motions lists of the High Court and Circuit Court are  burdened with motions citing deficiencies by plaintiffs and seeking orders under Section 10.

More seriously, recognition of the need to settle personal injury cases has receded from the minds of the defendants. That need arises from the fact that modern life injures too many persons to allow them all a day in court. There are not enough judges or courts to meet such a burden.

We now know that some at least of the defence interests could not afford to pay the claims of insured defendants. Section 10 facilitated that irresponsible position and the State is fully responsible for bringing that about.

The title is an acronym for Fact Based Medicine. (Can there be any other kind?)

We hope our doctors are thoughtful, attentive and kind, but we also expect them to be competent, ie, rational. That’s why we expect them to seek the facts. Before you seek the facts you need to know what facts you are seeking. That applies to the legal industry as much as to the medical profession.

The practice of law is much more a collective effort than medicine is. It cleaves more to convention than medicine does, say.

This writer was in High Court 2 in the Round Hall of the Four Courts a few days ago. The Personal Injuries list was called over. It was a very long list. It featured those personal injuries actions which had now reached their hearing date and in which the parties had arrived in court for trial. But they did not get their trial, most of them. They were, metaphorically, in a traffic jam. Cases were still in the list and being called over that had first appeared a week before; that meant the parties and their witnesses (potentially, if not actually) had been returning again and again to the Four Courts seeking a trial and had been failed again and again. Each succeeding day brought a new cohort of cases into the list. They too, failed to get a hearing and would have to come back the next day, and the next day and so on.

The judge struggled to express what everybody was feeling; that it was time to consider abandoning ship, metaphorically, and cancel the list. But he would not do it, unless the Counsel asked him. He then resiled from this, to laughter, saying it was not a matter where they had a vote.

But of course, they do and should. The courts system would not function without the lawyers. However, the forensic traffic jam was a symptom of another problem; a cumulative failure to settle the cases.

Taking a benign view of politics, this is the kind of problem that prompts Ministers for Justice to commission a Report from the likes of The Committee on Court Practice and Procedure. See the PDF of the Committee’s 29^th Report (dated 2004) HERE- [DOC] CCPP 29th Report - Courts Service

In that Report the Committee remarked;

“At present a very small proportion of personal injuries cases go to trial. However, litigants have the right of access to the courts and the process available should be the dispensing of justice in a speedy, efficient and effective manner.”

And again;

“It… [personal injuries litigation]… is a small proportion of the High Court work. High Court judges are required to hear cases in lists on Personal Injuries, Bail, Bankruptcy, Chancery, Commercial, Common Law Motions Circuit Court Appeals, Family Law, Garda Compensation, Judicial Review, Probate, Proceeds of Crime Act, Asylum, Admiralty, Solicitors Act, Medical Council, Nursing Council, Dental Council, Extradition, European Arrest Warrants, The Hague Convention, The Luxembourg Convention and Crime.”

The Committee failed, among other failures, to look at the implications of the sentence “At present a very small proportion of personal injuries cases go to trial.” The statement is accurate and the credit belongs to the two branches of the legal profession, but those settled cases were not investigated by the Committee. The Committee was to “…examine all aspects of practice and procedure relating to personal injuries litigation and consider whether the present system of practice and pleadings is appropriate to modern personal injuries litigation.”

Surely the criterion of the success or failure of a practice or procedure is that it assist in the process of settlement? If the Committee did not investigate what was good and working in the then current system, how could they be said to have considered “modern personal injuries litigation”. (What is that?)

Then there was the note of regret; “However, litigants have the right of access to the courts…” and the recitation of the various lists, clearly addressed to lay ears. Those lists are not equivalent to each other and some generate vastly more work than others or, conversely, some generate little work.

What is notable is that Reports like this (particularly this one) depart from “initial conditions”. Here, the Minister defined the initial conditions. The Report then recites the then current practices. What is absent is evidence that the Minister’s conditions are pertinent to some real problem or that the current practices are seriously deficient.

We know that the practices and procedures were changed subsequent to the Report.

Now the Personal Injuries List is breaking down.

Don’t expect expressions of regret from any participants, or admissions that the changes for which the Minister was responsible have led to this.

In the nature of things, accusations are leveled at opponents in court. These accusations vary in nature and import. The most serious are found in criminal proceedings. There, the State pursues the defendant with a view to punishing him/her, possibly with imprisonment. Few criminal proceedings do not imply a moral failure in addition to a breach of the law.

However, even civil proceedings following a road traffic accident will generate pleadings criticising the defendant. They, too, may imply a moral failure on the part of the defendant, or, just as pertinently, may be construed as doing so.

Construction may be everything; if the object of criticism thinks the criticism may lower him/her in the estimation of right-thinking members of the community he/she may sue for defamation. Absolute privilege is a defence to a defamation action and, under Section 17 (2) (i) of the Defamation Act 2009, attaches to reports published of proceedings before the Irish courts whether in the Republic or in Northern Ireland. The Section reads;

“…it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…… a fair and accurate report of proceedings publicly heard before, or decision made public by, any court-….”

To avail of this provision, the proceedings must have been held in public. This means that, for instance, the content of pleadings or an affidavit not opened in court will not be covered by the provision. (The writers of such pleadings or affidavits are protected, with absolute privilege, under Section 17 (2) (g) of the Defamation Act 2009).

The reporters of those pleadings or affidavits, if they are not made public in the court proceedings (i.e. not opened in court) are protected by qualified privilege under Section 18 of the Defamation Act 2009.

What if the judge, for instance, mutters “…I’ve read the affidavit…” and moves on? Has it been opened? Is it reportable?

That is a current issue in the UK.

HERE is the legal submission, in skeleton form, of the Guardian newspaper on the entitlement of the newspaper to have access to the papers upon which the [UK criminal] Courts are making or going to make their judgments.

See HERE for a statement relevant to this question in an Irish context.

So, before you can publish “a fair and accurate report” you must access the material. There is no right of access, under the Freedom of Information Acts, to Irish court records. In the High Court the records are under the control of the President of the High Court and in the Circuit Court under the control of the President of the Circuit Court.

Currently, in the High Court, civil pleadings are no longer filed in the Court. They are simply exchanged between the litigants and, later, a booklet of pleadings is delivered to the Court to facilitate the hearing of the action.

All of this is in considerable contrast to US courts. There, the general public has access to the court records. Indeed, they are often published on the internet by the court authorities. This is essential, for instance, in relation to a class action. There, the general public must be able to understand the issues to know whether to subscribe to the proceedings as an injured claimant.

When will Ireland catch up with the UK, not to speak of the US?

THE HIGH COURT
2006 No. 3785P
Between
DIGITAL RIGHTS IRELAND LIMITED
Plaintiff
And
THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL
Defendants
UPDATE (21/4/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.
2. McGarr Solicitors act for Digital Rights Ireland Ltd.
3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.
4. Judge McKechnie reserved judgment on those issues before the Court.
5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.
6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.
7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.
8. On 21st April 2010 Judge McKechnie informed Counsel for the Applicant and the State that he intended to deliver his judgment on 30th April 2010.

Judge McMahon travelled to Lissadell to see the subject of the dispute between the owners and Sligo County Council about “public rights of way” on the estate.

From an evidential point of view this is equivalent to looking at the murder weapon in a criminal trial, or looking at a large machine which cannot be brought to court with convenience.

It is normal for the parties to the dispute to be given the opportunity to accompany the judge (or the jury, as the case may be) with legal advisors in the “viewing” by the finder of fact.

The reason for this is to ensure the adoption of fair procedures and to preclude the possibility of some novel (and irrelevant) element, unseen and unknown by, and to, the parties colouring the judge’s perception and opinion.

There has been general astonishment at the findings of the High Court inspector into the “Fyffes” and “DCC” insider dealing transactions.

The inspector found that, Mr. Jim Flavin, having received legal advice, broke the law as to insider dealing, but, in the light of the advice, did so inadvertently.

Oddly, the judge who appointed the inspector to conduct the investigation said, in making the appointment:

The earlier proceedings were concerned only with the civil law and did not have to address culpability or responsibility of persons who may have advised or planned the transactions.”

How did that interesting idea fall by the wayside, as it appears to have done?