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Cite as: [2015] IEHC 62
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Judgment
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Neutral Citation: [2015] IEHC 62 THE HIGH COURT [2009 No. 19013 P.] BETWEEN/ AIDAN MCDONALD PLAINTIFF AND
A.Z. SINT ELIZABETH HOSPITAL, DR. JOOST VAN DER SYPT AND NORTH WEST WALES NATIONAL HOSPITAL TRUST (NO.2) DEFENDANTS JUDGMENT of Mr. Justice Gerard Hogan delivered on 22nd January 2015 1. Where a plaintiff travels from Ireland to Belgium for the purposes of medical treatment in response to a specific advertisement directed at (amongst others) Irish consumers, what is the proper law of that contract? This is the difficult question of private international law which now arises for determination as a preliminary issue. 2. The Irish rules of private international law relating to the proper law of a contract concluded prior to 17th December 2009 are largely governed by the Rome Convention on the Law applicable to Contractual Obligations 1980 (O.J. 1980, L 22, p.1)(“the Rome Convention”). The Rome Convention is an intergovernmental agreement which was concluded pursuant to the provisions of the (then) Article 220 of the EC Treaty. The Rome Convention was given the force of law in the State for the purposes of Article 29.6 of the Constitution by s. 2(1) of the Contractual Obligations (Applicable Law) Act 1991(“the 1991 Act”). (The provisions of the replacement Regulation, Regulation 593/2008 EC (“Rome II”) apply only to contracts made after 17th December, 2009 whereas insofar as there was a contract in the present case, it is agreed that it dates from March 2007). 3. Section 3(2) of the 1991 Act provides that the report by Professor Mario Guiliano and Professor Paul Lagarde on the 1980 Convention (O.J. C 282/24) (1980) may be considered by any court when interpreting any provision of the Rome Convention and “shall be given such weight as is appropriate in the circumstances.” I propose to have regard to the provisions of the Guiliano and Lagarde Report at various points in the course of this judgment. 4. Before examining this issue it is first necessary to rehearse the background to the present case. As originally formulated, the plaintiff’s claim was a claim in negligence for personal injuries as against the first and second defendants and damages for breach of contract as against the first defendant only. The claim as against the third defendant has been compromised and does not require to be further addressed. The present proceedings and the Brussels Regulation 6. The first issue which arose was the question of jurisdiction for the purposes of the Brussels Regulation No. 44/2001/EC. (The new recast version of the Brussels Regulation, Regulation 1215/12 EC, has since come into force on 10 January 2015). In the first judgment delivered in this matter, McDonald v. A.Z. Sint Elizabeth Hospital [2014] IEHC 88, I held that this Court had no jurisdiction to entertain an action in negligence against either the Hospital or the treating consultant (and second defendant), Dr. Van der Sypt. Both defendants were domiciled in Belgium for the purposes of Article 2 of the Brussels Regulation and there was no question of the harmful event (for the purposes of Article 5(3)) having taken place otherwise than in Belgium. 7. It was also clear from the evidence then put before me that the only contract between the parties was between the plaintiff and the first defendant hospital. (I will return presently to this issue). I further held that the plaintiff was a consumer for the purposes of Article 15 of the Brussels Regulation and that he could accordingly sue the Hospital in his place of domicile (i.e., Ireland) by virtue of Article 15(1)(c) of that Regulation. 8. Article 15 of the Brussels Regulation (2001 version) provides:
(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.” 10. In the wake of the delivery of the first judgment on the jurisdictional issue, Dr. Van der Sypt then swore a further affidavit on 17th December 2014 for the purposes of the contractual issue. In that affidavit Dr. Van der Sypt suggested that the Hospital had no contract with the plaintiff and that the plaintiff had paid him personally, rather than on account with the Hospital. I will merely say that these averments do not appear to be consistent with the evidence which was earlier put before the Court. In these circumstances, given that I have already adjudicated on the jurisdictional question on the basis of that earlier evidence, it does not appear to me that I can permit one of the parties - at least for the purposes of the Rome Convention issue - to advance a factual argument which is fundamentally different to that previously advanced at an earlier stage of the proceedings. Rome Convention 12. Article 4(1) provides that the basic rule is that the proper law shall be that the law of the contract “with which it is most closely connected.” The remainder of Article 4 contains certain presumptions as to what that law actually is. Article 5 of the Convention deals with consumer contracts. It may be convenient to consider this provision after having first considered Article 4. Article 4 of the Rome Convention 14. Article 4(1) provides:
18. The first defendant was clearly the party who was to effect the performance which was characteristic of the contract, namely, the gastric by-pass procedure. A.Z. Sint Elizabeth Hospital is a University Hospital which is either a body corporate or unincorporated. The contract was entered into in the course of its trade or profession, so that its principal place of business was Belgium. 19. This, moreover, is not a case where Article 4(5) should apply. Unlike some contracts, the characteristic performance of this particular contract can readily be determined. Nor can it be said that this contract was more closely connected with the Belgium rather than Ireland. The contract was concluded in Belgium, it was paid for by the plaintiff in Belgium and the contract was performed in Belgium. These factors plainly outweigh any countervailing argument which point to Ireland such as the fact that the plaintiff first saw the defendant’s advertisements in Ireland or that he had preliminary discussions regarding the proposed operation with Dr. Van der Sypt by telephone prior to travelling to Belgium. Article 5 of the Rome Convention 21. Article 5 provides:
2. Notwithstanding the provisions of Article 3, a choice of law made by the parties shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence: - if in that country the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract, or - if the other party or his agent received the consumer's order in that country, or - if the contract is for the sale of goods and the consumer travelled from that country to another country and there gave his order, provided that the consumer's journey was arranged by the seller for the purpose of inducing the consumer to buy. 3. Notwithstanding the provisions of Article 4, a contract to which this Article applies shall, in the absence of choice in accordance with Article 3, be governed by the law of the country in which the consumer has his habitual residence if it is entered into in the circumstances described in paragraph 2 of this Article. 4. This Article shall not apply to: (a) a contract of carriage; (b) a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence. 5. Notwithstanding the provisions of paragraph 4, this Article shall apply to a contract which, for an inclusive price, provides for a combination of travel and accommodation. 23. It should next be noted that Article 5(2) provides that any choice of law made by the parties in accordance with Article 3 shall not have the effect of depriving the consumer “of the protection afforded to him by the mandatory rules of the law of the country in which he has his principal residence” where, inter alia, if:
25. It is clear from the evidence filed that Mr. McDonald twice spoke with Dr. van der Sypt, having telephoned him from Ireland for this purpose. The parties discussed the options of surgical treatment for his obesity and made the appropriate arrangements for Mr. McDonald to travel from Ireland to Belgium. It is also clear that Mr. McDonald then travelled to Belgium where he signed the necessary consent form on the 7th March 2007 and discharged the appropriate fee prior to undergoing surgery. 26. Some assistance on this question is given by the Guiliano/Lagarde Report which states (at pp. 23-24):
28. The plaintiff clearly took action on foot of the advertisement, since he telephoned the Hospital and discussed his option with Dr. van der Sypt. In the light of the Guiliano/Lagarde Report, therefore, he obviously took “steps” to conclude the contract within the meaning of Article 5(2). But did he take “all” the steps necessary for this purpose? 29. Here it may be noted that Article 13(3)(b) of the Brussels Convention contained a similar clause in relation to the special jurisdiction provisions relating to consumer contracts. This matter was considered by the Court of Justice in Case C-96/00 Rudolf Gabriel [2002] E.C.R. I - 6367. In this case an Austrian consumer received a communication from a German mail order firm to the effect that he had won almost 50,000 Austrian Shillings subject only to placing an order of goods for a minimum of 200 Austrian Shillings. 30. The Austrian company duly delivered the goods in question, but refused to pay the further sums, claiming that there was no binding promise. The plaintiff then commenced proceedings in the Austrian courts seeking damages for breach of contract. The question of whether the case came within Article 13(3) of the Brussels Convention was then referred by the Austrian courts to the Court of Justice. 31. That Court noted that these provisions had a direct counterpart to the provisions of Article 5(2) of the Rome Convention as what it described (at para. 40) as “the concurrent conditions” of direct advertising and taking the necessary steps to conclude the contract “are designed to ensure that there are close connections between the contract at issue and the State in which the consumer is domiciled.” The Court of Justice found that the “necessary steps” condition had been satisfied in the present case because the consumer and the mail order firm had been “indubitably linked” once the order had been placed, “thereby demonstrating his acceptance of the offer - including all conditions attaching thereto - which that company had sent to him in person.” 32. There are, however, some important differences between Gabriel and the present case. First, Article 13(3)(b) of the Brussels Convention simply requires a showing that “the consumer took in that State the steps necessary for the conclusion of the contract”, whereas Article 5(2) of the Rome Convention requires proof that the consumer “had taken in that country all the steps necessary on his part for the conclusion of the contract.” (emphasis supplied). The word “all” is accordingly present in the Rome Convention but is not present in the corresponding provisions of the Brussels Convention and the presence or absence of this word is apt to have important consequences for the scope of application of the respective provisions. 33. Second, it is accordingly important to recognise that in Gabriel the Court of Justice was simply required to consider whether the plaintiff had taken the necessary steps and not “all” the necessary steps. Moreover, the issue in Gabriel was a straightforward consumer contract claim where the plaintiff had actually ordered and paid for the goods in Austria from the German mail order firm. It is thus clear that there was an “indubitable” contractual nexus between the parties by virtue of that order. 34. The present case, by contrast, is different. It cannot be said that Mr. McDonald took all the steps necessary for the conclusion of the contract within Ireland. Here it is critical to note that the consent to medical treatment form was signed on 7th March 2007 by the plaintiff upon his arrival in Belgium. This was surely a necessary precursor to the completion of the contract, since, as counsel for the Hospital, Mr. Reidy S.C., observed, the operation could not have been lawfully performed otherwise. Likewise, the payment was effected only after the plaintiff arrived in Belgium. This was also unlike the position in Gabriel where the consumer had already paid for the goods in his country of domicile. 35. In these circumstances I find myself coerced to the conclusion that the plaintiff cannot bring himself within Article 5(2), first indent. The language of this provision is very specific (“…all the steps necessary on his part for the conclusion of the contract…”). While the plaintiff can show that he took important steps in Ireland to complete the contract, I do not think that he can demonstrate that he took “all” the steps which were necessary for this purpose in this country. 36. What, then, are the consequences of this conclusion? The most immediate consequence is that the plaintiff is denied the benefit of Article 5(3) which, subject to one exception (which I will next address), provides that in such cases the law of the country where the consumer has his or her habitual residence shall apply, save where the parties have expressly chosen a particular law for the purposes of Article 3. Given my conclusion that the plaintiff cannot obtain the benefit of the Article 5(3), it is not probably strictly necessary to express a view on this question, but for completeness and given that the matter was fully argued before me, I will now address this question. Does the Article 5(4)(b) exception apply? 38. Counsel for the plaintiff, Ms. Dillon S.C., argued forcefully that Article 5(4)(b) did not apply, given that Dr. van der Sypt advised the plaintiff as to his options while he was still in Ireland and before he travelled to Belgium. Conversely, counsel for the Hospital, Mr. Reidy S.C., contended that the contract was not concluded until the consent form was signed and that thereafter the contractual services were to be performed entirely in Belgium. 39. In my view, for the reasons already stated with regard to Article 5(2), I think it clear on the facts that the contract was not concluded until the consent form was supplied by the plaintiff in Belgium. Thereafter, the contract was performed entirely in Belgium, so that the Article 5(4) counter-exception comes into play, negating the possible application of Article 5. 40. This conclusion also accords with the underlying policy of Article 5(4) which is explained thus in the Guiliano-Lagarde Report (at p. 24):
42. In arriving at this view, I have not overlooked the argument advanced by Ms. Dillon S.C. to the effect that advices were tendered by Dr. Van der Sypt while the plaintiff was still in Ireland. That is undoubtedly so, but this does not mean that those advices were supplied pursuant to an actual contract of services. These advices were at best pre-contractual in nature. If the events complained of had occurred entirely within Ireland, then, looking at the matter through the narrow prism of Irish substantive law, if those pre-contractual advices had been given negligently, then the plaintiff’s only remedy against Dr. van der Sypt would have been in tort rather than contract. 43. It follows, therefore, that Article 5 does not apply to the present case. Article 2(1) of the Convention Conclusions 46. First, as the plaintiff cannot show that the contract was to be performed elsewhere than in Belgium and as he could not have had any realistic expectation that Irish law should govern the contract, this is a case which falls outside the scope of Article 5(2) and Article 5(3). Specifically, as the plaintiff cannot show that he took “all” the steps necessary for the conclusion of the contract in Ireland, the case falls outside the scope of Article 5(2), first indent, so that the special choice of law rule in Article 5(3) does not apply. 47. Second, this case actually falls within the counter-exception contained in Article 5(4), as the contract was to be performed exclusively in Belgium. 48. So far as Article 4 is concerned, it likewise follows that Belgium was the place of performance of the obligation which was characteristic of the contract (namely, medical services) for the purposes of Article 4(2). That presumption is not displaced by Article 4(5), since the contract was more closely connected with Belgium rather than Ireland. 49. It follows, therefore, that for those reasons the proper law of the contract for the purposes of Article 4(2) and Article 5(4) of the Rome Convention must be adjudged to be Belgian law. |
