litigation

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.

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.

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.

Noted in the Irish Times, 2nd February 2013, page 6.

“Eoin was born in moderate condition at 6.35 am on July 30th, 2002, without any inherent defect or genetic abnormality, as the hospital, among various claims, had alleged”.

This sentence means the hospital alleged Eoin … “was without any inherent defect or genetic abnormality”. This cannot have been the case; there would have been no proceedings, for the newspaper to report, otherwise.

IT SHOULD READ:

“Eoin was born in moderate condition at 6.35 am on July 30th, 2002, without any inherent defect or genetic abnormality, despite various claims, including the contrary, by the hospital”.

The Food Safety Authority of Ireland has analysed selected consumer products sold in Ireland. These products are probably also sold in the UK. By and large they were “manufactured” in Ireland.

The products are, allegedly, burgers made of beef meat. (1)

It is true, they contained some beef meat. However, they also contained some pig and horsemeat. The proportions varied from sample to sample.

There is one conclusion to be drawn from this; it is not wise to trust the meat processing industry. (We have always known this, butchers were traditionally excluded from serving on juries in criminal trials.) (2)

In fact we still do not trust the meat industry. Every meat processing plant has a vet in attendance. The vet is employed by the State and the vet’s job is to ensure that the plant is operated in accordance with law.

What else do we do?

Well, the FSAI survey is in fact a follow-up check of the output of the plant(s) and the State surveillance. Probably, we also assume that grocery multiples will try to ensure that the product they buy from meat processors is what the processors claim it is. (3)

What do we resolutely not do?

We refuse to empower the consumer to take effective action against such consumer abuse. We know that each individual consumer is helpless to take effective direct personal action. We also know that there are tried and tested remedies for consumers, if they act collectively, but in Ireland we will not permit that. No amount of Ministerial hand-wringing will be a substitute for permitting class actions in Ireland.

(1) Here, “allegedly” is appropriate. The wrapping on the burgers made allegations (known to lawyers as “representations”) about the products. Journalists need to be careful, but, when ABP’s Silvercrest Foods claims it is itself investigating the presence of horse meat in a burger it produced, that’s an admission about the horsemeat and the product. There is no need to be pusillanimous by saying the burger was alleged to have horse meat in it.

(2) Probably by lawyers; a man who kills animals is inured to death; he will not readily feel for a fellow human facing a death penalty.

(3) When I say “we” here, I mean the State, not the citizens.

This post is not about the facts of O’Flynn v Creighton, currently at hearing. Except for one fact. How is Lucinda Creighton going to pay for her legal representation? She is in the middle of a very expensive form of litigation. The costs are particularly high in defamation actions.

Leaving aside the fact that she is in receipt of a substantial income as a Minister of State, there is no Legal Aid for defamation actions. Even if she were as poor as a church mouse she would not get legal aid.

So what? Why should anybody get legal aid in such a case? Because without some funding help, a person might not get justice.  It is impractical to think that justice is possible for a lay litigant. In the Irish court system, the judge is not intended to help one party at the expense of the other. If that happens in a case with a lay litigant (as it most likely would), the help will be minimal; otherwise the party with the legal representation will simply appeal to a higher court and have no difficulty finding grounds for the appeal.

What has this to do with Lucinda Creighton? Well, it brings to mind the McLibel case. Ultimately, the UK itself lost the McLibel case. Ireland is perfectly poised to follow it to ignominy.

Ireland’s continuing failure to make proper, modern provision for the funding of litigation of any type (except, minimally, Family Law) is a scandal and will eventually cost a lot of money.

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.

THE HIGH COURT
Record No: 840P/2005

BETWEEN:

SHELL E & P IRELAND LIMITED

Plaintiff

And

PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN

Defendants

And

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants to the counterclaim of second and fifth defendants

Update (12^th November 2012)

1. On 18th and 19th November 2008, Judge Laffoy heard the application, on motion, of the State to determine as a preliminary issue whether the 2nd and 5th Defendants are precluded from raising “public law issues”.
2. McGarr Solicitors act for Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants. Their counsel are Lord Dan Brennan QC and Genevieve Burke BL. The Chief State Solicitor acts for the Minister, Ireland and the AG. Their Counsel are James Connolly SC and Charles Meenan SC. Eugene F Collins act for SEPIL. Its counsel are Patrick Hanratty SC and Declan McGrath BL.
3. The court has decided (judgment delivered on 4th March 2010) that the 2nd and 5th defendants are NOT precluded from raising “public law issues”.
4. The proceedings commenced in April 2005, when Shell E & P Ireland Ltd. (”SEPIL”), issued plenary summons proceedings against the defendants. Mr. Philbin was committed to prison for 3 months, effectively, on the application of SEPIL on the grounds that he had breached an injunction restraining him from preventing SEPIL from entering his land.
5. In the events that have happened, SEPIL applied for and received the leave of the court to discontinue its claims against the defendants. This happened after SEPIL had received the defences of the defendants and the 2nd and 5th Defendants had counterclaimed against SEPIL and successfully joined the Minister and Ireland and the AG as further defendants to the counterclaim. SEPIL’s discontinuance did not end the counterclaim. The counterclaim is substantial. As against the Minister, Ireland and the AG it claims that certain Compulsory Acquisition Orders made by the Minister regarding the land of the defendants are invalid. It also claims that a consent allegedly made by the Minister in favour of SEPIL, to construct a pipeline over the defendants’ land is invalid.
6. The Minister, Ireland and the AG asserted that these are “public law issues”. They asserted that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They asserted that, that being so, those claims of the defendants are late. They asserted that the claims, to be admissible, should have been made within the time limits of 3 or 6 months (at most) after the making of the CAOs and the consent.
7. SEPIL supported the State parties in their submissions and position.
8. The defendants denied they are confined by the provisions of Order 84 and/or its “time limits”. They said that Order 84 is not an exclusive procedure; that it cannot be used to shut out the hearing of claims against the State where the State has wronged citizens, particularly with regard to the private property of the citizen. They said, consequently, that the counterclaim should proceed to a full hearing on its merits.
9. The State parties appealed the judgment of Laffoy J. to the Supreme Court. The appeal came on for hearing before the Supreme Court on 24^th October 2012 and finished that day. Judgment has been reserved.