Consumers And The Brussels I Regulation

Author:Mr Gearóid Carey
Profession:Matheson
 
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Introduction

In Harkin v Towpik & Others1 the Irish High Court considered an application brought by the defendants, among other things, to set aside the service of the summons on them on the grounds that the court had no jurisdiction to hear and determine the plaintiff's claim, as claimed under the EU Brussels I Regulation (44/2001).

Background

In 2009 the plaintiff wished to have a breast reduction and searched online for the procedure. In doing so she came across the UK-based website of the third named defendant, which advertised the availability of cosmetic medical procedures in Poland. The plaintiff made her own arrangements to fly to Warsaw in July 2009, where she attended the clinic of the second named defendant and met the first named defendant, who explained the risks and likely outcomes. She duly paid for the procedure and the following day, having signed a consent form following an additional examination, she had the operation. She had two further checks with the first named defendant before returning to Ireland.

Twenty one months later the plaintiff contacted the third named defendant in the United Kingdom to raise a concern about the outcome of the procedure, referencing specifically the post-operation position of her nipples. In early July 2011 a letter before action was written to the defendants, calling on them to admit liability. Shortly thereafter, a personal injuries summons was issued just before the expiration of the two-year limitation period under Irish law from the date of the procedure. The summons claimed "damages for personal injury arising out of negligence and breach of duty". The plaintiff made no averment about any consideration of claiming in Poland, other than the statement at the end of the summons that no proceedings had been commenced in any other jurisdiction. In late July 2011 the defendants' solicitors indicated that the jurisdiction of the Irish courts would be challenged, conditional appearances were entered to that end and further particulars of the claim were sought. Ultimately, the motion came before the president of the High Court for determination.

Brussels I Regulation

The court observed that the Brussels I Regulation outlines the general provisions governing jurisdiction within the European Union. The general rule from Article 2(1) is that jurisdiction lies with the courts of the member state of the defendant's domicile. However, Article 3 further provides that a defendant may be sued in the courts of another member state if specific exceptions apply. Articles 5 to 7 of Section 2(2) of the regulation confer special...

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