Insolvency

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.

It is not usual to have a very clear piece of balderdash in an Act.

Here is one in the Credit Institutions (Stabilisation) Act 2010.

Section 4 of the Act recites the purposes of the Act, including:

(c) to continue the process of reorganisation, preservation and restoration of the financial position of Anglo Irish Bank Corporation Limited begun with the Anglo Irish Bank Corporation Act 2009

Anglo Irish Bank no longer exists. It is now called Irish Bank Resolution Corporation Ltd. and it will never be “restored” to its “financial position” or any other position.

The Council of the Law Society of Ireland has proposed that the members of the Law society vote for the following proposal:

“That [the members] approve[s] the recommendation of the Society’s Council to provide financial support to the Solicitors Mutual Defence Fund…”

Surprisingly for lawyers, the Council seems not to recognise that it carries a risk of non-persuasion. This is evidenced in its several failures to treat the members respectfully.

Why did the Council submit the proposal to the members, rather than adopt it at the Council? The Council elided the question, but the answer is very relevant. Many of the Council members are also members of the SMDF and would therefore, be conflicted. A vote by persons with a conflict of interest would be easily overturned in the appropriate forum. In short, the Council could not lawfully adopt the proposal.

The Council has not been restrained in its advocacy of the proposal. It has urged its adoption on the Law Society members. It is using the resources of the Law Society to procure its adoption. It is doing this without declaring the conflict of interest of the Council’s SMDF members. It is the fiduciary duty of corporate directors to avoid conflicts and they are further bound to disclose them.

The proposal is of doubtful legality. The SMDF, the Council of the Law Society says, is a private independent body, not controlled by the Law Society. The funding of the SMDF bailout will not be voluntary. It will be enforced by a planned refusal of the Law Society to make it a condition, of the receipt of an annual practicing certificate, that solicitors pay a levy for the bailout.

The Council has, it says, received legal advice from Counsel that the proposal is lawful. It has not disclosed that advice to the members, and clearly the Council has no intention of disclosing it now. It is not credible, without full disclosure, that the Council has such advice.

The claimed source of the law validating or empowering the proposal is Section 26 of the Solicitors (Amendment) Act 1994. A bailout of the SMDF was never in the contemplation of the Oireachtas in passing Section 26. None of the provisions of Section 26 authorise the Council’s proposal. Indeed, special mention, in Section 26, had to be made of SMDF because it does not fit with an essential ruling idea in the Section; that solicitors be indemnified. An indemnity, legally, implies a right to indemnity, usually in contract. It is generally admitted that the members of SMDF have, and had, no right to indemnity from SMDF; its benefits were available only at the discretion of the directors of SMDF.

There is something more immediate to throw the Council’s proposal into questionable light; is the SMDF insolvent?

The Council asserts it is, but there are reasons to doubt this. The Council itself discloses that the regulations governing SMDF preclude the SMDF directors from making any payment resulting in insolvency. In addition, the SMDF itself has not claimed it is insolvent. This is not surprising because there could be malign consequences for the directors of SMDF if that were the case. The issue is not a minor one; much of the Council’s case is predicated on the un-foreseeability of the actions of the inevitable liquidator of SMDF. But, if there is no insolvency, there is not likely to be a liquidator. (For lawyers, “insolvent” has a precise meaning; that the entity is unable to pay its debts when they fall due.) A letter from SMDF to some practitioners dated 27^th May 2011 is confirmation that SMDF is not insolvent; it says…

”It should be understood that the Fund has no immediate difficulties…”

If there is a problem in the SMDF, why do its members, including those on the Council of the Law Society, not solve their own private problem?

Even if the SMDF is not insolvent, it is possibly suggesting that it will not pay out on some at least of valid claims against solicitor members of the SMDF. Why do the members not top-up the “mutual fund” that is the SMDF, to meet those claims? On the figures provided by the SMDF, this would cost the members approximately €1000 per year. According to the Council of the Law Society, the prospects of them agreeing to this are “slim”, but they have not been tested.

Separately, the members of the SMDF could seek real professional indemnity insurance elsewhere. They will have to do this anyway at the end of the current year; the SMDF says it will not take on any business after this year; (we now see “business” here is a misnomer).

If SMDF members have poor claims histories they can apply to enter the “Assigned Risks Pool”, a device provided for in the Solicitors (Amendment) Act 1994. This allows solicitors with very poor claims records to continue in practise.

Consequently, there is no immediate problem. According to the SMDF, it has re-insured 100% of the risks for this year. In previous years it re-insured 90% of the risks. We do not, in the light of those facts, know why SMDF is taking the extreme step of ceasing “business” at the end of this year, but it is.

Here again, the Council of the Law Society has failed to properly inform the members as to what the problem is, and its implications.

The members of the Law Society should vote no to the Council’s proposal.

The Council of the Law Society probably harbours people with mixed motives for proposing the bailout of the SMDF, but none can gainsay the fact that the appeal to the members of the Law Society is an appeal to them to conspire in their own humiliation.

The Law Society is entrenched in a conventional intellectual assumption that the Society is unlike other bodies and, at bottom, better. This view is, paradoxically, at odds with the fact that the Society has in the relatively recent past striven to grasp at manufactured heritage (the purchase of the Kings Hospital in Blackhall Place), a sure sign of insecurity.

A person of even moderate vision, not blinded by personal interest would see that the humiliation of an entire profession is against the real interests of that profession.

Consider; the Council shows no sign of devoting energy to meeting the challenge of the IMF/ECB bailout terms; instead it is navel gazing at a failed project of the past.

Whatever it may do, the Law Society of Ireland may not levy the bailout of the SMDF on solicitors, conditional on giving the annual practising certificate. Asked why the Law Society of Ireland would not  cite the legal basis for the claim that it could so, Mr. Gilhooly, the Law Society’s designated spokesman replied;

@Tupp_Ed it already has. S.26 of 1994 act gives power for levy. Specific legal advice from Bryan Murray s.c. C docs sent out with sgm notice

January 1, 1970 12:59 am via Twitter for iPhoneReplyRetweetFavorite

@DSBAPresident

Stuart Gilhooly

To find out what the Law Society may do in relation to PI insurance for solicitors, just read Section 26 of the Solicitors (Amendment) Act 1994;

Section 26 (1) authorises the Society to make regulations “making provision for indemnity” against losses…incurred by…solicitors…”. [A bailout of SMDF is not within this provision.]

Section 26 (2) lists some of the things the Society may provide for. [None of these things fall within the current bailout proposal.]

Section 26 (3) gives a general power to the Society to do things to facilitate the implementation of the other powers vested in the Society under the Section. (“…indemnity within the section…”). [It is not a free standing power to do what the Society wants; it must refer to some other power of the Society and facilitate the exercise of that power.] This is a typical example of what is commonly termed “sweeping up words” in legislation. Bennion on Statutory Interpretation [5th Ed., p. 255] says;

“A power to do something extends only to that thing. Its purported exercise extending to a different thing is to that extent not an exercise of the power at all: ‘the power exercised must be the power conferred’.

Section 26 (4) stipulates some of the conditions the Society may set, relating to the insurance indemnity of solicitors. [None of these things fall within the current bailout proposal.]

PS It is fully acknowledged by the Law Society that payments by SMDF to cover the liabilities of its members are discretionary. Consequently, “SMDF” and “indemnity” are mutually exclusive terms.

Think about it.

Now, re-read Section 26.

The Council of the Law Society, many, if not all, of whom are members of the SMDF considered whether they could compel SMDF members to bailout the SMDF themselves. They decided they could not.

However, they decided they could compel members of the Law Society to do so. They have identified the pressure point on Law Society members as the annual practising certificate. Without the certificate a solicitor cannot practise. They propose to refuse a certificate unless the solicitor pays the bailout cost.

This assumes that the delivery of the certificate is a gift or a grant from the Law Society; it is not. The furnishing of the certificate is an act of the executive power of the State; the Law Society is simply an agent of the State in the transaction. It has no right to deny the certificate to a qualified solicitor. In furnishing the certificate it is following the provisions of legislation for the granting of certificates.

That legislation confers no power on the Law Society to extort its members to bailout a private, dodgy, financial services provider, the SMDF.

The Council of the Law Society is about to crash and burn, whatever the outcome of the postal poll.

On the 13th April 2011 the Council of the Law Society unanimously decided … to convene an EGM of the members of the Law Society and… recommended to support SMDF financially… up to a maximum of €16 million…

Following the failure to achieve their objective in the EGM, the matter was remitted to a postal poll of Law Society members. The Council is promoting the proposal in the poll and is using the resources of the Law Society to ensure acceptance.

A large number of the Council members are members of the SMDF. Their personal interests require that the proposal be adopted. Those personal interests arise from membership of SMDF, not as ordinary members of the Law Society.

Council members are fiduciaries and the applicable law is clear;

“..it is an inflexible rule of the Court of Equity that a person in a fiduciary position… is not, unless expressly provided, entitled to put himself in a position where his interest and his duty conflict.”

[Bray v Ford (1896 AC 44)]

It is a breach of corporate law and good governance to allow such a situation to arise, Even if the proposal is carried, it is open to challenge in the High Court because of the breach of fiduciary duty by the Council.

It is worthwhile looking at the profile of member firms in the SMDF. This is set out in the 2009 Annual report of SMDF, seen HERE.

A little more than one third were sole practitioners. The majority were mid-range firms. These firms have a stability, a solidity to them. They are profitable.

They are the firms failing to bailout their fund, the SMDF.

According to their spokesman;

“The chances of SMDF members voluntarily contributing to a bailout are “very slim””

Instead, they have decided to off-load the burden of the bailout on their fellow solicitors in the Law Society.

Furthermore they have captured the Council of the Law Society and are using the resources of the Law Society to promote their personal interests.

They have no interest in justifying the proposed SMDF bailout by reference to statute. Even it they did, they would have a problem; there is no statutory power in the Law Society to levy a bailout of the SMDF on Law Society members.

If the solicitors in the SMDF convene an EGM they can, in most conceivable circumstances, act as they decide.

If the solicitors in the Law Society pass the proposed SMDF bailout resolution they can act on it only if the Law Society has statutory authority to do what the resolution proposes. The reason is this; it would be unlawful to deprive a solicitor of his or her livelihood simply because he or she declined to contribute to the Law Society’s favourite charity, the SMDF.

The Law Society does not have that statutory power.

It would cause phenomenal reputational damage to the solicitors’ profession if it is later demonstrated that the Law Society does not and did not have the legal authority to compel solicitors to bailout the SMDF.

There are two sensible things the Council of the Law Society should do urgently.

1. Cite the presumed statutory authority for the Council’s bailout plan;

2. Change plan and convene an EGM of SMDF members to have those members bailout their own private company.

The Council members who are SMDF members could easily procure the EGM meeting. At a minimum it would be instructive if the SMDF declines its own bailout