EU law

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

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.

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

 “With no evidence of fraud…”

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

My online dictionary defines “fraud” as:

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

The finding by the Food Safety Authority of Ireland of horse meat in frozen beef burgers invokes the following legal provisions:

A)            Articles 14 (1) and 16 of Regulation (EC) N° 178/2002 on General Food Law;

B)            Regulations 5 (1) and 6 of the European Communities (General Food Law) Regulations 2007.

Under Article 14 (1) of Regulation No. 178/2002, “Food shall not be placed on the market if it is unsafe”. “Unsafe” includes food unfit for human consumption.

The Regulation goes on…

“In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.”

So, food is contaminated if it contains extraneous matter.

Article 16 of Regulation No. 178/2002 provides;

“Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.”

Under Regulation 5 (1) of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator places unsafe food on the market or otherwise contravenes Article 14 of the EC Regulation.”

Under Regulation 6 of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator fails to comply with Article 16 of the EC Regulation in the labelling, advertising or presentation of food.”

So, citizens will want to know if there will be prosecutions for the Irish beef burger incident.

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

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

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

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

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

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

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

Here we go again.

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

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

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

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

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

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

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

( a ) transport;

( b ) accommodation;

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

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

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

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

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

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

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

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

Maybe there’s a necessary correlation between shocking bumbling incompetence (as in the case of sometime EU Commissioner Charlie McCreevy) and a prediliction to patronise.

Whatever the case, we see it in the EU Commission plan to “give” a class-action procedural right to EU citizens. Mr. Almunia is in charge of this. He says, confusingly, that;

“…only state bodies and certified non-profit organisations would be allowed to bring actions, and that any damages awarded would go entirely to victims and not to the representative entity“

After an interview with Mr. Almunia the Financial Times wrote:

“Another thorny issue is whether to facilitate more private damages actions by the “victims” of competition offences, notably those who suffer from the higher prices imposed by cartels. Mr Almunia’s predecessor, Neelie Kroes, argued that such group actions could be a useful deterrent to illegal price-fixing. But corporate lobbyists warned about the dangers of introducing a US-style “class action” culture and Ms Kroes’ legislative proposals were stillborn.”

So, what’s it to be? A “state body” of the nanny state (headed by Patrick Neary?) or a right to personally litigate wrongdoing by corporate giants?

Of course, this begs the question; why has Ireland not already introduced the right to maintain class actions?

The answer is; they are opposed at a high level.

See our earlier post on the issue HERE.

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

See the most recent post on the issue HERE

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted.

Currently, DRI has furnished its expanded draft of the terms of the Reference to be sent to the ECJ. The State, through its Counsel, has agreed to revert to DRI by 17th August 2010 with its responses, if any.

The case will be re-listed before the Court in October.

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted. Clearly, the High Court is not convinced that the form of question suggested by DRI is exactly right (or is seeking the assent of the State to DRI’s form of question). The hearing next Wednesday will show us which is the case.

DRI’s case is brought in its own name, but it is an action with implications for every citizen of Ireland, whether they know it or not.

For this reason McGarr Solicitors have published DRI’s pleadings on the Web since 2006. This is reasonable; the Respondents are, in effect and name, the State. The issues are public law issues and there can be no prevailing claim to privacy on those issues from these Respondents. It is worth noting that it is not common, to put it at its lowest, to see pleadings of current proceedings published but there is usually an exception to every rule and we have one here.

Between now and next Wednesday we will re-formulate the questions to go to the ECJ. These questions will form part of the Order of the Court making the reference to the ECJ. We currently estimate a two year wait to get a hearing in the ECJ. Delay is inevitable; every Member State of the EU has a right to intervene and be heard in the matter. That implies that every Member State must receive a copy of the Questions and the parties’ submissions.

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 (5/5/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government.

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. On 5th May 2010 the High Court delivered its (unapproved) judgment. The Court confirmed its agreement to refer the EU law issue in the case to the European Court of Justice. The Court refused the State’s applications seeking denial of locus standi to the Plaintiff and/or seeking security for costs.

5. The matter will be listed before the Court again on 12th May 2010 for submissions on the form of question or questions to be referred to the ECJ.