The High Court has ruled that Belgian law governs a contract for gastric bypass treatment performed on an Irish plaintiff at a Belgian hospital in March 2007. Mr Justice Gerard Hogan delivered the judgment on a preliminary issue about the contract’s proper law, not the underlying negligence claim.
The plaintiff travelled to AZ Sint Elizabeth Hospital in Zottegem after the hospital advertised its services to Irish and UK consumers. He contacted the hospital from Ireland and discussed treatment options by telephone with Dr Joost van der Sypt. In Belgium, he signed a medical consent form and paid the fee before undergoing surgery on 6 March 2007.
The plaintiff’s original proceedings included a negligence claim against the hospital and Dr van der Sypt, and a contract claim against the hospital. In an earlier judgment, the High Court held it had no jurisdiction over the negligence claims against those two defendants, but that the plaintiff could sue the hospital in Ireland under the consumer-jurisdiction provisions of the Brussels Regulation. The claim against the third defendant, North West Wales National Hospital Trust (No. 2), had been compromised.
For the present issue, the judge considered the Rome Convention, which applied because any contract dated from March 2007. He found the hospital was the party responsible for the contract’s characteristic performance, the medical procedure, and that the relevant performance and the contract’s closest connections were in Belgium.
The court also considered whether the Convention’s special rules for consumer contracts meant Irish law applied. The judge said the plaintiff had taken important steps in Ireland after seeing the advertising, including contacting the hospital and discussing treatment. But he had not taken “all the steps necessary” there: he signed the consent form and paid only after reaching Belgium. The court therefore held that the consumer rule directing the court to the law of the consumer’s habitual residence did not apply.
The judge also concluded that the medical services were supplied exclusively in Belgium, engaging an exception that excluded the contract from the Rome Convention’s consumer provisions. He treated the advice given by Dr van der Sypt in Ireland as pre-contractual for this purpose.
The court determined that Belgian law was the proper law of the contract under the applicable provisions of the Rome Convention. The judgment resolved that choice-of-law preliminary issue; it did not determine the merits of the negligence or contract claims.