Health Service Executive v Roftek Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 15 December 2022
• Neutral Citation: [2022] IEHC 710
• Court: High Court
• Docket Number: Record No. [2020 8416 P]

Between

The Health Service Executive

Plaintiff

and

Roftek Limited

Defendant

[2022] IEHC 710

Record No. [2020 8416 P]

THE HIGH COURT

Breach of duty – Struck out – Want of jurisdiction – Defendant seeking that the proceedings be struck out for want of jurisdiction – Whether the plaintiff had outlined the basis upon which the High Court should assume jurisdiction

Facts: The plaintiff, the Health Service Executive (the HSE), on 16 December 2020, issued a plenary summons against the defendant, Roftek Ltd, alleging breaches of duty, including contractual and statutory duty, negligence and misrepresentation, in respect of the design, manufacture, sale and supply of an allegedly defective “Flexmort mortuary” (the Dome) which was delivered to the plaintiff by the defendant on or about 8 October 2018. The purchase price was pleaded to have been €84,007.40. The essence of the plaintiff’s claim was that the manufacture of the Dome was defective. On 17 February 2021, the defendant entered a ‘conditional’ appearance to the proceedings in which jurisdiction was contested (i.e. wherein it was stated that the appearance was entered “without prejudice and solely to contest the jurisdiction of the court). The matter came before the High Court by way of the defendant’s motion wherein it sought that the proceedings be struck out for want of jurisdiction.

Held by Heslin J that the defendant’s application should be refused. He found that the plaintiff had outlined the basis upon which the Court should assume jurisdiction, namely, per Article 7 of European Council Regulation (EU) No 1215/2012 incorporating the Brussels Convention on the jurisdiction of courts and enforcement of judgments in civil and commercial matters (Brussels Recast). In light of what emerged from a careful consideration of the evidence before the Court, he could not take the view that there was a genuine consensus between the parties in relation to any choice of law clause, and that being so, Article 25 of Brussels Recast had no application in the case.

Heslin J held that flowing from a refusal of the defendant’s motion was the appropriateness of the plaintiff being afforded a reasonable period of time to bring an application to amend. As the plaintiff acknowledged during the course of submissions, he held that it would be for the plaintiff to bear the costs of such an application. He found that it also seemed to follow that the defendant be required to enter an unconditional appearance following the amendment of the plaintiff’s indorsement. He held that once the foregoing had been attended to, it would enable the real issue in dispute, which revolved around the merchantability of the Dome, to be determined. He held that the plaintiff had established jurisdiction and the case would proceed before the Court. He held that the parties should submit a draft order, which reflects the terms of this judgment, by 11 January 2023.

Application refused.

Judgment of Mr. Justice Mark Heslin delivered on 15 ^th day of December 2022

Introduction

1 . The plaintiff (hereinafter “the HSE”) is a statutory health authority, having its registered place of business at an address in Co. Kildare. The defendant is a limited liability company with its registered office at an address in Gloucestershire, United Kingdom. On 16 December 2020, the plaintiff issued a plenary summons against the defendant alleging breaches of duty, including contractual and statutory duty, negligence and misrepresentation, in respect of the design, manufacture, sale and supply of an allegedly defective “Flexmort mortuary” (hereinafter “the Dome”) which was delivered to the plaintiff by the defendant on or about 8 October 2018. The purchase price is pleaded to have been €84,007.40.

2 . A statement of claim was delivered on 8 March 2021 [note: there is a typographical error, in that it is dated 8 March 2020]. The present motion was issued some 6 weeks later, on 19 April 2021.

3 . In the statement of claim, the plaintiff pleads, inter alia, that on 16 March 2020 the Dome was delivered to Collins Barracks in Cork city and was inflated as part of the plaintiff's preparations and emergency response to the emerging Covid–19 crisis. It is further pleaded that on or about 29 April 2020 the Dome collapsed and a tear along a seam was identified. The plaintiff also pleads that it engaged the services of a specialised manufacturer of inflatable products who repaired the seam on or about 1 May 2020. The statement of claim goes on to plead that the Dome was inflated but, within a period of 48 hours approximately, deflated and, upon further inspection, numerous holes were identified in the Dome and repaired. It is pleaded that on 6 May 2020 the Dome was inflated but collapsed again on 18 May 2020 with a further tear identified along a different seam/join (see paras 7–9 inclusive of the statement of claim). At para. 10 of the plaintiff's statement of claim it is pleaded that in breach of:-

“ … agreement and/or representations to like effect upon which the plaintiff relied, negligently and/or in breach of warranty and/or in breach of representations made, the Defendant, its servants or agents:-

(a) Failed to manufacture and/or design the said dome, either properly or at all.

(b) Failed to provide a dome to the Plaintiff that was fit for the purpose for which it was sold.

(c) Failed to ensure that the said dome was of good and merchantable quality.

(d) Failed to ensure that the said dome was free from all defects.

(e) Failed to use good and proper and appropriate materials in and about the production, design and manufacture of the said dome.

(f) Failed to ensure that the said dome was manufactured to a due and proper standard;

(g) Caused or occasioned the Plaintiff to be supplied and sold a product that was incapable of operating properly.

(h) Caused or occasioned the Plaintiff to be supplied and sold a dome that was inherently defective in a fundamental respect and not of merchantable quality.

(i) Failed to have any or any proper regard for the ultimate user, namely the Plaintiff, in and about the design, production, manufacture, distribution, sale and supply of the said dome”.

4 . It is fair to say that the essence of the plaintiff's claim is that the manufacture of the Dome was defective. This is also clear from the contents of a “letter before action” dated 13 August 2020 which was sent to the defendant at its Gloucestershire address, by Messrs. Comyn Kelleher Tobin, solicitors for the plaintiff, which stated inter alia:

“It seems to us that the Flexmort Mortuary Dome supplied to our client is not fit for purpose and not of merchantable quality. We have advised our clients of the requirements and obligations pursuant to the Sale of Goods and Supply of Services Act 1980 and the 2003 European Regulations. Furthermore, in our view, the faults in the Flexmort Mortuary Dome are such as to constitute a breach of contract and in the circumstances our clients wish to terminate the contract, return the Flexmort Dome to you and obtain a full refund in addition to the costs of repairs and legal costs to date.

If we do not hear from you within 14 days of the date of this letter with an admission of liability and confirmation that our clients monies will be refunded to include costs of repair and legal costs we shall have no option but to issue proceedings against you. This letter will be used to fix you with the costs of any such proceedings.”

5 . It is clear that the reference to the “ Sale of Goods and Supply of Services Act 1980” in the said letter of claim was to Irish legislation and the letter signalled an intention to issue proceedings in this jurisdiction, rather than any other.

6 . On 17 February 2021, the defendant entered a ‘conditional’ appearance to the proceedings in which jurisdiction was contested (i.e. wherein it was stated that the appearance was entered “… without prejudice and solely to contest the jurisdiction of the court”). The matter comes before this Court by way of the defendant's motion wherein it seeks that the proceedings be struck out for want of jurisdiction.

7 . The 16 December 2020 plenary summons contains an indorsement asserting that: “These proceedings are issued and commenced under and pursuant to the provisions of European Council Regulation (EU) No 1215/2012 incorporating the Brussels Convention on the jurisdiction of courts and enforcement of judgments in civil and commercial matters…” (hereinafter “the Brussels Recast Regulations” or “Brussels Recast”). The indorsement contains a certificate that this court has the power to assume jurisdiction by virtue of Regulation 1215/2012 and that no other proceedings between the parties concerning the same cause of action are pending in any other Member State. It is also certified that this Court may assume jurisdiction:-

“…(iii) in matters referred to in Sections 3, 4 or 5 of Regulation No. 1215/2012 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the defendant”.

8 . Order 4, r. 1A of the Rules of the Superior Courts (hereinafter “the RSC”) provides as follows:-

“Where an indorsement of claim on an originating summons concerns a claim which by virtue of Regulation No. 1215/2012, Regulation No. 2201/2003, the 1968 Convention or the Lugano Convention, the Court has power to hear and determine, the following provisions shall apply:

(1) The originating summons shall be endorsed before it is issued with a statement that the Court has the power under Regulation No. 1215/2012, Regulation No. 2201/2003, the 1968 Convention or the Lugano Convention to hear and determine the claim and shall specify the particular provision or provisions of Regulation No. 1215/2012, Regulation No. 2201/2003, the 1968 Convention or the Lugano Convention (as the case may be) under which the...