This is the Judgment of Ms. Justice Laffoy to the Application by the Harley Medical Group (Ireland) Ltd to be wound up by the Irish High Court.
Despite its name, The Harley Medical Group (Ireland) Ltd is not an Irish company, but a company incorporated in the British Virgin Islands.
We act for 20 Irish clients of The Harley Medical Centre Ltd. It traded at many clinics in the UK and had one clinic in Dublin at 5 Herbert St. Dublin 2. Our clients attended the Dublin clinic.
Our clients have personal injury and other claims against The Harley Medical Centre Ltd. arising from, inter alia, the breach of contract of The Harley Medical Centre Ltd. in supplying unmerchantable goods to our clients.
This application by the Harley Medical Group (Ireland) Ltd was the first application by a non-EU company to an Irish Court for a winding up order under the current legal regime.
The Court rejected the assertion by the Harley Medical Group (Ireland) Ltd that the EU Insolvency Regulation did not apply to this application.
“The primary ground of Opposition advanced by counsel for the Opposing Creditors was that the Court does not have jurisdiction to make the winding up order, because the Insolvency Regulation applied to the Company and its centre of main interests is not in this jurisdiction.
Counsel for the Company characterised the submissions made on behalf of the Opposing Creditors as having been made in a “closely reasoned” manner. I would go further; those submissions put this Court on the right path.”
– Paragraph 10 of Ms. Justice Laffoy’s Judgement
Effect on claims
McGarr Solicitors was the only firm who, at hearing, opposed the making of a winding up order on behalf of their clients.
The Harley Medical Centre Ltd. supplied our clients, on various dates, with PIP breast implants. PIP breast implants are acknowledged to be defective. They rupture at a rate above the “industry” norm and are filled with industrial grade silicone, rather than medical grade silicone.
It is important to note that no winding up order has yet been made against the British Virgin Islands company. The Plaintiff’s legal petition was found not to contain the necessary statements which would permit such an order to be made.
The Court has ordered that a winding up order will only be granted subject to the Harley Medical Group (Ireland) Ltd filing a further, compliant, petition and another affidavit swearing to the truth of the amendments.
For women who were supplied with PIP breast implants, this winding up process has confirmed the existence of multiple Insurance Policies covering the British Virgin Islands company for certain kinds of claims in certain years. It is quite possible that further insurance policies exist, which were not disclosed to our firm. The Directors of the Harley Medical Group (Ireland) Ltd did not deny that this was the case.
In addition, claims against the Harley Medical Centre Ltd, a UK company which traded out of 5 Herbert Place, Dublin, are unaffected by this judgment.
The Court’s Judgment
The essence of the judgment is as follows:
- The Court found that the legal arguments of McGarr Solicitors (for some Harley PIP breast implant victims) were valid. Consequently, the Insolvency Regulation applies to the Harley petition to be wound up by the court;
- The Court found that the “centre of main interests” (“COMI”) of The Harley Medical Group (Ireland) Ltd. was not in the British Virgin Islands and was in Ireland. Consequently, the court found it had jurisdiction to wind up The Harley Medical Group (Ireland) Ltd.
- The court found that the Harley petition was deficient, as was the grounding affidavit of The Harley Medical Group (Ireland) Ltd. Consequently the court adjourned the application to permit The Harley Medical Group (Ireland) Ltd. to amend the petition and grounding affidavit to comply with Order 74, rule 7.
We are considering this judgment and will making any submissions arising from it to the Court at the next hearing date of the 29th May 2013.