Re Harley Medical Group (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 16 May 2013
• Neutral Citation: [2013] IEHC 219
• Court: High Court
• Docket Number: [2013 No. 93 COS]
• Date: 16 May 2013

[2013] IEHC 219

THE HIGH COURT

[No. 90 COS/2013]

Harley Medical Group (Ireland) Ltd, In Re

IN THE MATTER OF THE HARLEY MEDICAL GROUP (IRELAND) LIMITED

AND

IN THE MATTER OF THE COMPANIES ACTS 1963 -2012

EEC REG 1346/2000

RSC O.74 r10

RSC O.74 r11

COMPANIES ACT 1963 S345

COMPANIES ACT 1963 S343A

COMPANIES ACT 1963 PART X

COMPANIES ACT 1963 S344

EEC REG 1346/2000 ART 3

SOVERIGN MARINE & GENERAL INSURANCE CO LTD 2007 1 BCLC 228

COMPANIES ACT 1963 S201

SEALY & MILMAN ANNOTATED GUIDE TO INSOLVENCY LEGISLATION 7ED 2004 602

LYNCH FANNON & MURPHY ON CORPORATE INSOLVENCY & RESCUE 2ED PARA 2.05

COMPANIES ACT 1963 S345(4)

COMPANIES ACT 1963 S345(4)B

COMPANIES ACT 1963 S345(5)D

COMPANIES ACT 1963 S213(E)

COMPANIES ACT 1963 S214(C)

COMPANIES ACT 1963 PART VI

INTERNATIONAL WESTMINISTER BANK v OKEANOS 1987 BCLC 450

A COMPANY , IN RE EXPARTE NYCKELN FINANCE COMPANY LTD 1991 BCLC 539

COURTNEY LAW OF COMPANIES 3ED PARA 23.036

EEC REG 1346/2000 ART 3(1)

EEC REG 1346/2000 ART 3(2)

COMPANIES ACT 1963 S343A

EEC REG 1346/2000 CHAP I

EEC REG 1346/2000 CHAP III PART X RECITAL 13

EEC REG 1346/2000 CHAP III PART X RECITAL 14

BRAC, IN RE RENT A CAR INTERNATIONAL INC 2003 1 WLR 1421

EUROFOOD IFSC LTD, IN RE 2004 4 IR 370

COMPANIES ACT 1963 S212

RSC O.74 r7(2) PARA (A)(III)RSC O.74 r7(2)(i)

RSC O.74 r7(2)(b)

RSC O.74 r7(2) APPENDIX M

COMPANY LAW

Winding up

Insolvent company incorporated outside European Union - Winding up of unregistered company - Jurisdiction of High Court to wind up foreign company - Location of centre of main interests - Presumption that centre of main interests place of registered office - Rebuttal of presumption - Appropriate jurisdiction for insolvency proceedings - Separate legal personality of two separate and distinct companies sharing a common single shareholder or parent company - Re BRAC Rent-A-Car International, Inc [2003] EWHC 128, [2003] 1 WLR 1421 and Interedil Srl In Liquidation v Fallimento Interedil Srl and Intesa Gestione Crediti SpA (Case C-396/09), [2011] ECR I-09915 followed - Re Eurofood IFSC Ltd [2004] IESC 45, [2004] 4 IR 370 applied - International Westminster Bank plc v Okeanos Martime Corp [1988] Ch 210; Re a Company (No 003102 of 1991), ex parte Nyckeln Finance Co Ltd [1991] BCLC 539 and Stocznia Gdanska SA v Latreefers Inc (No 2) [2001] 2 BCLC 116 approved - Eurofood IFSC Ltd (Case C-341/04) [2006] ECR I-3813; [2006] 1 Ch 508 and Re Sovereign Marine and General Insurance Co Ltd [2006] EWHC 1335, [2007] 1 BCLC 228 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 74 - Companies Act 1963 (No 33), ss 344 and 345 - Council Regulation EC/1346/2000 (Insolvency Regulation) - Order to wind up company to be made subject to presentation of amended petition (2013/13COS - Laffoy J - 16/5/2013) [2013] IEHC 219

In re Harley Medical Group (Ireland) Ltd

Facts: The petition sought to wind up the Harley Medical Group as it was unable to pay its debts. Its principal office was located in the State but it was asserted that the Insolvency Regulation did not apply to the company on account of its association with a centre outside of the jurisdiction. Opposing creditors contested the jurisdiction of the Court to make a winding up order. The Court considered where its centre of interests lay. It was averred that the company had never traded in any jurisdiction other than Ireland.

Held by Laffoy J. that there would be an order winding up the Company. The Company and the Centre with which it was associated shared a common parent, namely the sole shareholder. The centre of main interests of the company was undoubtedly in the jurisdiction of the State. The company had established on the evidence before the Court that it was unable to pay its debts. The Court had discretion to wind up the Company.

1 Judgment of Ms. Justice Laffoy delivered on 16th day of May, 2013.

The petition

2 1. The petition the subject of this judgment seeking to wind up the Harley Medical Group (Ireland) Limited (the Company) disclosed the facts set out below, which were amplified by other documents put before the Court:

3 (a) On 26 ^th February, 2013 the Company presented the petition to the Court. The Company was incorporated in the British Virgin Islands under the name The Harley Medical Group (Overseas) Limited on 28 ^th February, 1995 and it changed its name to its present name on 2 ^nd July, 1999.

4 (b) On 13 ^th October, 1999 the Company was registered in the Companies Registration Office (CRO) in this jurisdiction as an external company with a branch established in the State pursuant to the European Communities (Branch Disclosure) Regulations 1993. A CRO search exhibited in the verifying affidavit referred to later discloses that the registered office is 5, Herbert Place, Dublin, which is identified as the address of the branch in the form F13 lodged in the CRO on 13 ^th October, 1999. The type designation is "external company". It is clear from the CRO search, and this fact has been averred to in the verifying affidavit, that the relevant annual returns for an external company (Form 7) have been filed in the CRO between 2003 and 2012.

5 (c) The registered office of the Company is in the British Virgin Islands and its principal place of business is 5, Herbert Place, Dublin, 2.

6 (d) The Company is a private company limited by shares. Only one share has been issued. It is held by Praxis Trustees Limited (the Sole Shareholder), a company registered in Guernsey.

7 (e) The directors of the Company are Pierre Guillot, Louise Braham and Melvin Braham. The secretary of the Company is Goodbody Secretarial Limited, with an address in Dublin, which provides company secretarial services to the Company.

8 (f) The principal activity of the Company is the provision of cosmetic surgery services and associated non-surgical cosmetic services.

9 (g) The Company is insolvent and unable to pay its debts. The balance sheet of the Company as of 31 ^st January, 2013 shows that the liabilities of the Company exceed its assets by €456,531, although the corresponding figure in the verifying affidavit is €560,435. Whichever figure is correct, the assertion that the Company is insolvent is supported. In addition, the Company has significant contingent liabilities.

10 a (h)On 21 ^st February, 2013, the Sole Shareholder passed a written resolution resolving that by reason of its insolvency the Company should be wound up by the Irish High Court. The resolution authorised the board of the Company to take all necessary steps for that purpose.

11 (i) The Company is unable to pay its debts. It is in the interests of the creditors of the Company and it is just and equitable that the Company be wound up.

12 (j) The "principal office" of the Company is located in the State and the Company "is administered from its principal office and all the activities of the Company are carried out exclusively in the State". The Company is "amenable" to being wound up in the State.

13 It was asserted in the petition that Council Regulation (EC) No. 1346/2000 (the Insolvency Regulation) does not apply to the Company.

14 2. As is clear from the foregoing, the primary basis on which the Company seeks a winding up order is that it is unable to pay its debts, although the just and equitable ground is also relied on. The relief sought by the Company is that the Company be wound up under the provisions of the Companies Acts 1963 to 2012.

15 3. The affidavit verifying the petition was sworn by one of the directors, Mr. Guillot, on 27 ^th February, 2013. There is exhibited in the verifying affidavit a "Certificate of Good Standing" issued by the Registrar of Corporate Affairs of the British Virgin Islands, which proves that up to the date thereof, 13 ^th February, 2013, the Company was still on the Register of Companies in the British Virgin Islands, that it was not in voluntary liquidation, and that no strike off proceedings had been instituted.

16 4. In the verifying affidavit it was disclosed that the Sole Shareholder holds the entire issued share capital of each of two companies registered as private limited companies in England and Wales: the Harley Medical Centre Limited (Centre) and Brava UK Distributors Limited. Both Mr. Guillot and Mr. Graham are directors of each of those companies.

17 5. The significant contingent liabilities were identified in the verifying affidavit as arising from claims against the Company by one hundred and fifty eight former patients of the plaintiff who have claims against the Company in respect of cosmetic treatment they received from the Company. At least one hundred and forty of those claims arise from breast implant operations conducted by the plaintiff using breast implants from PIP, a French registered company. Mr. Guillot has averred that the Company has been informed by its insurers that its insurance cover does not extend to product liability claims for products sourced from a third party. He has further averred that, while it is impossible to quantify the claims of those claimants, they could potentially increase the Company's liability by several million Euro.

18 6. While there is further detail in the verifying affidavit in relation to the claims arising from the use of the PIP implants both by the Company and by Centre, the detail is not of relevance to the issues the Court has to determine, which are whether the Court has jurisdiction to wind up the Company and whether it should make a winding up order. However, it is disclosed in the verifying affidavit that Centre was placed in administration in the United Kingdom on 9 ^th November, 2012. The business and assets of Centre were subsequently acquired by a private equity firm, Aesthetic and Cosmetic Surgery Limited (ACS), from the administrators. The relevance of those facts is that, as Mr....