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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mary-Rose Harkin v Edward Towpik & Ors [2013] IEHC 351 (22 July 2013)
URL: http://www.bailii.org/ie/cases/IEHC/2013/H351.html
Cite as: [2014] 1 ILRM 51, [2013] IEHC 351
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Judgment Title: Mary-Rose Harkin v Edward Towpik & Ors Neutral Citation: [2013] IEHC 351 High Court Record Number: 2011 6333 P Date of Delivery: 22/07/2013 Court: High Court Composition of Court: Judgment by: Kearns P. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 351 THE HIGH COURT [2011 No. 6333P] BETWEEN MARY-ROSE HARKIN PLAINTIFF AND
EDWARD TOWPIK, KLINIKA IATROS & DENISE BIRD DEFENDANTS JUDGMENT of Kearns P. delivered on the 22nd day of July, 2013. This is an application brought by the defendants herein by way of notice of motion dated 7th March, 2013 for an order striking out the above medical negligence proceedings for want of jurisdiction. The case concerns a cosmetic surgery procedure that was performed in Poland by the first named defendant at the second named defendant’s clinic. The third named defendant is based in the U.K and at all material times acted as an agent of the first and second named defendant and liaised with the plaintiff in that capacity. More specifically, the defendants are seeking an order pursuant to the inherent jurisdiction of the Court striking out the proceedings against the said defendants for want of jurisdiction or, in the alternative, an order setting aside the service of the summons herein upon those defendants on the grounds that this Honourable Court does not have jurisdiction to hear and determine the plaintiff’s claim against those defendants, as claimed under the provisions of Council Regulation (EC) No. 44/2001 or the provisions of the 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial matters. FACTUAL BACKGROUND Ms. Bird received Stg£283 in the UK from the plaintiff on Monday 13th July, 2009. The plaintiff made her own arrangements directly with Aer Lingus to fly Dublin-Warsaw on Tuesday 14th July, 2009. On that date she arrived to meet the first named defendant (Prof. Towpik) at the clinic of the second named defendant. The plaintiff was assessed for her suitability for the procedure followed by an explanation of risks and likely outcomes. On 14th July, 2009 the plaintiff paid for the procedure. The following day, Wednesday 15th July, she signed a consent to the procedure in the presence of Prof. Towpik who further examined and operated upon the plaintiff that day. The plaintiff had two check-ups with Prof. Towpik before returning to Dublin as she had arranged. Some 21 months later, the plaintiff through her own recently acquired e-mail address, e-mailed Ms. Bird about her concern in relation to the outcome of the procedure with specific reference to the post-operation position of her nipples. Ms. Bird received in the UK photographs which she passed to Prof. Towpik. The plaintiff was informed by e-mail on 18th May, 2011 that Prof. Towpik and two other surgeons did “not see a considerable dislocation of the nipple areola complexes” but suggested a resection might be considered after a further consultation. Almost two years after the procedure an “O’Byrne” type letter dated 12th July, 2011 alleging negligence and breach of duty only was written to all three of the defendants in which (without reference to any independent expert’s report) an admission of liability was sought. The plaintiff’s solicitor issued a personal injuries summons (“the summons”) on 13th July, 2011 just before the expiration of the two year limitation period from the date of the procedure. The summons - although it contained a reference to an alleged breach of contract - only claimed “damages for personal injury arising out of negligence and breach of duty”. The plaintiff has made no averment about any consideration of claiming in Poland other than the statement at the end of the summons that no proceedings have been commenced in any other jurisdiction. Following notification by e-mail from the defendants’ solicitors on 31st July, 2012 that the jurisdiction of the Irish courts would be challenged and following a conditional appearance for the Polish defendants only on 15th July, 2012 the plaintiff’s solicitors sent notices of “further particulars of negligence, breach of duty and breach of contract” and “personal injury” dated 20th July, 2012. The latter referred to a report for the first time from a Mr. Cronin, consultant plastic, reconstructive and hand surgeon dated 27th April, 2012. More significantly, the plaintiff’s solicitors furnished separate allegations of breaches of duty and contract against Prof. Towpik and the other defendants in this notice of further particulars. BRUSSELS I REGULATION
“1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State…”
“1. Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.” Matters pertaining to contract are dealt with under article 5(1) of the Regulation which states that:
1. (a) in matters relating to contract, in the courts for the place of performance of the obligation in question; (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided…” In that regard, Section 4 of Chapter II of the Regulation sets out particular jurisdiction rules pertaining to consumer contracts. This section permits a consumer to bring proceedings in her own Member State against a party domiciled in another Member State, subject to certain conditions being met. It is this section that the plaintiff seeks to rely on, especially article 15(1) and article 16. Article 15(1) states that:
(a) it is a contract for the sale of goods on instalment or credit terms; or (b) it is a contract for a loan repayable in instalments, or for any other form of credit, made to finance the sale of goods; or (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.”
2. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.” DECISION
[15] As far as the concept of ‘consumer’ is concerned, the first paragraph of Article 13 of the Convention defines a ‘consumer’ as a person acting ‘for a purpose which can be regarded as being outside his trade or profession’. According to settled case-law, it follows from the wording and the function of that provision that it affects only a private final consumer, not engaged in trade or professional activities (Shearson Lehman Hutton, paragraphs 20 and 22). [17] Consequently, only contracts concluded for the purpose of satisfying an individual’s own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically…” The application of Article 15(1)(c) of the Regulation arose for determination in the joint cases of C-585/08 and C-144/09, Peter Pammer v. Reederei Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v. Oliver Heller [2010] ECR I-12527. Peter Pammer v. Reederei Karl Schlüter GmbH & Co. KG (C-585/08) concerned a contract involving a voyage by freighter. Hotel Alpenhof GesmbH v. Oliver Heller (C-144/09), involved the non-payment of a hotel bill for a stay booked by a German national in Austria on the internet, in which the Austrian national court asked the European Court of Justice to determine whether the fact that a website of the party with whom a consumer concluded a contract can be consulted on the internet was sufficient to warrant a finding that an activity was being “directed” within the meaning of article 15(1)(c). In holding that it was not the court opined that the notion in article 15(1)(c) of activity “directed to” the Member State of the consumer’s domicile is not defined in the Regulation and, as such, “must be interpreted independently by reference to principally to the system and objectives of the Regulation, in order to ensure it is fully effective”. The court further stated that whilst there is no doubt that the aim of articles 15(1)(c) and 16 of the Regulation is to protect consumers,
[76] It must therefore be determined, in the case of a contract between a trader and a given consumer, whether, before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers domiciled in other Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with those consumers.”
[81] Clear expressions of such an intention on the part of the trader include mention that it is offering its services or its goods in one or more Member State designated by name. The same is true of the disbursement of expenditure on an internet referencing service to the operator of a search engine in order to facilitate access to the trader’s site by consumers domiciled in various Member States, which likewise demonstrates the existence of such an intention. [82] However a finding that an activity is ‘directed to’ other Member States does not depend solely on the existence of such patent evidence. In this connection, it should be noted that, by its legislative resolution on the proposal for a regulation that is referred to in paragraph 43 of the present judgment (OJ 2001 C 146, p.101), the European Parliament rejected wording stating that the trader had to have ‘purposefully directed his activity in a substantial way’ to other Member States or to several countries, including the Member State of the consumer’s domicile. Such wording would have resulted in a weakening of consumer protection by requiring proof of an intention on the part of the trader to develop activity of a certain scale with those other Member States.”
[94] On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address or other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.”
Significantly, the courts specifically held that it was for the national courts to determine whether such evidence as exists points to that conclusion. The conduct of this exercise may, in certain circumstances, require a determination of the facts at issue which may be pertinent to the question of jurisdiction. As Clarke J. stated in Ryanair Ltd v. Unister GmbH & Aeruni GmbH [2013] IESC 14:
8.7 Likewise the guidance given by the ECJ in a number of the cases makes clear that inquiries into the facts may be necessary, at least in some cases, in order to decide jurisdiction. For example, some of the cases arise out of the provisions of the Regulation in its amended form which allow a choice of jurisdiction agreement to derive from a relevant usage in international trade or commerce of which the parties are or ought to have been aware and which is widely followed in the commercial area concerned (see Article 17(c)). In Hugo Trumpy the court determined that awareness of the relevant usage was to be assessed with respect to the original parties to the agreement allegedly conferring jurisdiction and in the light of whether a particular course of conduct is generally and regularly followed in the conclusion of the particular type of contract in question. The ECJ, therefore, clearly contemplated that a court would have to assess whether that test was met on the facts which assessment might well, at least in some cases, involve a consideration of conflicting evidence. 8.8 There may be some doubt as to the precise extent to which it is appropriate for a court, in considering whether it has jurisdiction, to enter into detailed and contested factual questions in order to reach a conclusion as to whether jurisdiction has been established. However, it seems to me that the position adopted on behalf of Unister, which is to the effect that if the matter is not very clear the default jurisdiction applies, is not consistent with the jurisprudence of the ECJ. It follows that there may well be cases where an Irish court will be required to enter into some consideration of contested facts in order to determine whether, in accordance with the Regulation, it has jurisdiction...” Furthermore, the plaintiff only met the first named defendant for the first time in Poland and was only examined for the first time in Poland, where she also underwent pre-operative tests for the first time. Significantly, it was in Poland that the breast reduction procedure was performed. Although she may have transferred monies constituting a deposit from her bank account in Ireland, this was only a nominal sum in relation to the total cost of the procedure, and the remaining cost of the surgery was paid in Poland. In addition, the plaintiff had signed a consent form while in Poland. All of these matters suggest that the defendants’ activities were not directed to consumers within this jurisdiction. Further, all of the discussion in this case is premised on the proposition that the plaintiff has a viable claim in contract which is highly questionable on the facts. The reality, of course, is that this is a claim for damages in tort, a clear case under national law of a medical negligence claim. In any compensation claim it would be treated as such, and only as such, in this jurisdiction. I would therefore grant the relief sought in the defendants’ motion. |