compensation

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

In the UK and Ireland, The Harley Medical Centre Ltd., trading as The Harley Medical Group, was a major seller and distributor of the defective PIP breast implants. The Harley Medical Group (Ireland) Ltd is currently before the Irish courts, looking to be put into liquidation. McGarr Solicitors is the only solicitors’ firm that has attended court for Irish PIP victims and argued for their clients’ interests in this application.

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

Modern people, sportsmen/women excepted, are most at risk of serious injury when travelling on the road. The energy bundled in a motor car, or other vehicle, is considerable. If that energy is suddenly blocked, which is what happens in a typical car accident, it must go somewhere and, unfortunately, it sometimes goes into us. Then you are injured and the nature and extent of that injury is determined by chance.

Make no mistake; as a society, we have planned these accidents. Otherwise we would prohibit such forms of travel. Instead, we build lots of roads and we promote the use and sale of motor cars.

In this sense, it is a misnomer, to call these events “accidents”.

Take a circus, or theatre, knife-thrower.  If the knife thrower “accidentally” throws the knife and stabs his (typically) lovely assistant in the heart, we expect that the police will arrest him and that he will be convicted of a crime. We reject the idea that this is an accident. His implied position, that his only fault lies in that last unintended lapse in his wrist, is rejected.

We know that he arranged everything and we are reasonable in considering that, perhaps, or even probably, he had no lapse whatever in his wrist and intended the injury/death.

It is, among other things, this knowledge of a social responsibility for road traffic accidents that we see expressed in the fact of a Government “4^th Road Safety Strategy” or that the EU is holding a “Road Transport Safety Conference on Serious Injuries” in Dublin.

It is a fact, and we should know it, that, as a society, we can suffer mental aberration on these matters. (“Mental aberration” is a polite term for madness).

I do not just mean politicians’ proposals for Irish farmers to be permitted to drink and drive.

I do not just mean politicians claiming that workers allegedly neglecting road safety be allowed to get on with the job and be freed from “red tape”.

I mean it is a form of mental illness, hypocrisy certainly, to plan for injuries to happen and to claim, in the Constitution, that the State will vindicate the person (meaning bodily integrity) of citizens (and others) and then to establish a statutory body (the Injuries Board, a.k.a., the Personal Injuries Assessment Board) (and maintain it) that seeks to ensure the lowest possible level of success in delivering compensation to those injured persons, and to go further; to shrink the window of opportunity for the injured person to effectively make a claim for that compensation to the inadequate time of two years.

In fact, to term all of this “madness” is politeness.

We should remember that we were not always as “mad” as we currently are. We have a “legal system” that includes a cohort of persons intent on overcoming the State’s lunacy.When it comes to car accidents solicitors (and barristers) are those working for the common good. The persons who intentionally hobbled them in doing what they try to do, namely, vindicate the bodily integrity of road accident and other personal injury victims, cannot be categorised as mad. They are simply working against the common good.

The Injuries Board is also called the Personal Injuries Assessment Board. It was established by statute in 2003.

Every person wishing to recover compensation for a personal injury inflicted by wrongdoers must first apply to the Injuries Board for an assessment of the value of the claim.

The Board has issued an article today (26^th March 2013) and Patricia Byron, Chief Executive, went on Morning Ireland for an interview.

The upshot of the article and the interview is this; personal injury claims are increasing and this is bad.

This sounds like the resurrection of the jibe about “Compo Culture”. That jibe was the cry of persons who wished to deny to injured persons their rightful compensation when they were injured by the wrongful acts of others.

Those persons were successful in their campaigning because they had political friends in high places. The establishment of the Personal Injuries Assessment Board was one of their achievements.

Another was the shortening of the time within which an injured person had to issue proceedings before becoming statue barred from doing so. The time was shortened from three years to two years. (One politician wanted to drop it to one year).

Now the Injuries Board is asserting something is happening that it says is undesirable; that people are being educated to make claims for personal injury.

This is a surprising development. The Personal Injuries Assessment Board has a budget for advertising. Any reasonable person would think that it was part of the job of the Personal Injuries Assessment Board to educate injured persons to make claims for personal injury and to do so to the Board. Clearly, the Board does not think so. It fully approves of the restrictions on solicitors to advertise about personal injury claims. It wants that extended to others; it says those others are “claims agencies”.

Here are some facts:

1. PIAB are precluded from examining liability, but do get information on the facts of accidents. if those facts are not credible or reliable, PIAB can decline assessment;
2. In addition, respondents can and do decline assessment of false claims;
3. Consequently, piab assessments are of valid claims;

What public official can claim to be reasonable when decrying a claimed increase in PIAB claims? These claimants have been injured and want and deserve compensation.

The explanation is this; PIAB is biased against injured claimants.

1. It wishes to leave those persons in ignorance of their rights. (Patricia Byron; RTE’s “Morning Ireland” – 26/3/2013). Ms. Byron specifically complained in that interview that “the thought is being put in their mind”.
2. PIAB charges claimants for an assessment, but can, and does, relieve respondents (wrongdoers) of their obligation to pay, or even to submit to the PIAB system, before making an assessment (or, as should happen, giving the claimant an authorisation to go to court). (See Section 14 (b) of The Personal Injuries Assessment Board Act 2003).

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.

One in three accidents at work occurs in connection with “manual handling”.

Employers owe a legal duty of care to their employees. The duty of care includes taking reasonable steps to ensure the health and safety of employees and to avoid accidents at work. The precise terms of the duty of care may be found in the law of negligence or it may be found in a statute, as a precise legal rule.

In the case of the obligation to avoid injury through manual handling, a duty of care is found in the law of negligence and in the provisions of The Safety, Health and Welfare at Work (General Application) Regulations 2007.

Manual handling includes lifting, pushing, pulling or turning weights or objects. It includes doing these things to people. Nurses are at considerable risk of injury from this cause.

See the advice on the topic from the Health and Safety Authority HERE.

In principle, an employer is obliged to provide mechanical equipment to execute manual handling operations. Manual handling by the worker personally is to be avoided where possible. Of course, the injury may not be to the back; it may affect the arm or shoulder or legs.

The risks in manual handling are known; they arise from loads that are too heavy; too large; difficult to grasp; unbalanced or unstable; difficult to reach, or of a shape or size that obscures the worker’s view.

Perfect justice does not exist. When a person is injured, by the fault of another, only a money payment is available in law to compensate him or her. This inadequacy is unavoidable. Recently, in Ireland, a generation of politicians, civil servants and some lawyers, decided to trade even this inadequacy to further their prospects and careers. They promoted the interests of the defence in personal injury claims, over the interests of the injured plaintiff and some still do so.

They were the least likely persons to care about the plaintiff in Hu -v- Duleek Formwork Ltd & Anor [2013 IEHC 50; every generation of Irish politician for eighty years had, in principle, cared nothing for that plaintiff.

It is imperative that this stop now. Even the lowest common denominator says so.

Think only of what John Donne, the English poet, wrote in 1623, in Meditation XVII (Nunc Lento Sonitu Dicunt, Morieris);

“No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were: any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.”

With very little bother or trouble, the Oireachtas could and should remedy a real and persistent injustice for many injured persons.

In Hu -v- Duleek Formwork Ltd & Anor [2013 IEHC 50,  the High Court declined to make a declaration that the Plaintiff was entitled to the benefit of an insurance contract taken out by the insolvent Defendant company. The insurance company, Aviva, took issue with the Defendant’s failure to pay the excess of €1,000 which, as between the Defendant and Aviva, it was the Defendant’s liability to pay in respect of the Plaintiff’s claim.

Aviva would not be able to do this in the UK.

Mr Hu was injured due to the Defendant’s negligence and, it seems, breach of duty. The Defendant had paid a premium to Aviva and insured itself against claims such as that of Mr. Hu. It would have got its indemnity entitlement if it had not been insolvent. Its insolvency prevented it paying the excess. Mr. Hu offered to pay the excess but Aviva would have none of that. Consequently Mr. Hu is left without compensation for his serious personal injury and Aviva have escaped paying him because there is no person to make them do it.

More than 80 years ago the UK decided that exactly these instances of  the doctrine of privity of contract, which doctrine was in essence the basis of the Irish High court decision, were indefensible and insupportable in such circumstances. Recently the UK law was updated.

All we Irish have to do is to copy what the UK has done.

The past is still here. 80 years is no excuse for perpetrating injustice; it is an inexcusable injustice. Laziness and indifference are human faults not explanations.

Supermarkets are common locations of slips and falls. The customer numbers are high and the material to cause the slips is readily to hand.

Under the Occupiers Liability Act 1995 an occupier is obliged to take;

 “… such care as is reasonable in all the circumstances…….to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon”

There is a danger in supermarkets that stuff will fall to the floor and customers will slip on it.

The circumstances will vary between one part of the supermarket and another. If a tin of beans falls to the floor, it is unlikely a customer will step on it or fall having stepped on it. However, if vegetables or fruit fall to the floor the customer will surely fall if she steps on it. So, the care to be taken is greater in the area of the vegetables (or containers of oil, for instance).

Ireland does not like to collect information. If it does collect information, it does not like to release it to the public. Until the introduction of the Safety Health and Welfare at Work Act 1989, statistics on work accidents were completely unreliable. Many such accidents had been defined out of existence and were not searched for or recorded. The State set up a commission, the Barrington Commission, to review the facts on accidents at work, in the lead up to the introduction of the 1989 Act.

Things are now improved. Work accidents are monitored, to a degree, by the mis-named Health and Safety Authority.

It is mis-named because it deals almost exclusively with accidents at work, happening to workers. It has no remit to collect data on accidents and/or injuries generally.

For that kind of information we have to look to the USA. See HERE for the US National Safety Council’s report for 2008. On page 29 it recites:

“Falls are the leading cause of nonfatal unintentional injuries that are treated in hospital emergency departments, according to data from the All Injury Program…..More than 8.5 million people were treated in an emergency department for fall-related injuries in 2008. Falls were the leading cause of nonfatal injuries for all age groups except for the 15-24 year old age group, for which struck by or against an object or person was the leading cause. Struck by or against, overexertion, and motor vehicle crashes involving vehicle occupants were also leading causes for most age groups.”

This is surprising; falls injury more people than road accidents. (Possibly not; see page 37 of the US report) What does this mean for retailers?

Perhaps it is time to examine an idea (that a fall in a supermarket should trigger an obligation on the occupier to prove it happened in the absence of fault on the part of the occupier ) similar to one floated in the Irish Supreme Court; (Mullen v Quinnsworth Ltd, t/a Crazy Prices (No 1)[1990] 1 IR59 (raising the possibility of imposing “absolute” liability on the proprietors of large supermarkets on an analogy with the rule in Rylands v Fletcher)

We are rightly worried about our beef burgers. The supposed international criminal conspiracy undermining the meat industry is easily located; it is the meat industry. But the meat industry is not unique.

Consider our bread. We have been suspicious about it for a long time. When white bread was invented or introduced it was popular with the rich; they felt more confident that they were not eating bread contaminated with mouse droppings or insects or their body parts. (Bleached excrement and beetle parts are OK?)

Then the rich became suspicious about white bread. It was of lower nutritional value. Indeed, all mass produced bread is of lesser value than homemade or artisan made bread.

These issues are sub-sets of a larger issue: we inhabit one environment, much of it engineered. Lots of things can go wrong and if one does many people will be affected.

The general legal principle (the law of negligence) means that the person or persons who engineer the environment will be answerable for the consequences when things go wrong (central bankers and politicians, generally, excepted).

We have tried to make some of those “engineers” more readily answerable for the hazards of parts of that environment.

Employers come to mind.

See HERE  for the advice from the UK Health and Safety Executive to employers about safeguarding employees (and others, partially) from infectious agents.

Some of the “engineers” are builders and we have recent reason to think about walls and the building of them. In Cowan v GAA and McInerney & Son Ltd. [1991] 1 IR 389 the court heard that the plaintiff, a spectator, was injured when part of a wall collapsed on him at Croke Park in 1985. The part of the wall not collapsed had dowels or rods in it; the collapsed part did not. The court inferred that the specification for the wall required rods in every part and therefore the second defendant was liable. The first defendant was also liable because it should have reviewed the safety of its premises with a general structural examination following two notable disasters in foreign public stadia in 1985