The High Court granted a motion by three defendants to strike out medical negligence proceedings brought in Ireland by Mary-Rose Harkin over breast reduction surgery performed in Poland. President Kearns delivered judgment on 22 July 2013.
The application sought to strike out the proceedings for want of jurisdiction or, alternatively, to set aside service of the summons. The defendants relied on the jurisdiction rules in the Brussels I Regulation and the 1968 Brussels Convention.
Harkin had found a UK-based website advertising cosmetic procedures in Poland. She paid £283 sterling to Denise Bird in the UK and arranged her own flight from Dublin to Warsaw. In Poland, she met surgeon Edward Towpik at the clinic of Klinika Iatros, was assessed and informed of risks, and underwent the procedure on 15 July 2009 after signing a consent form. She had two post-operative check-ups before returning to Dublin.
About 21 months later, Harkin emailed Bird with concerns about the position of her nipples. Bird passed photographs to Towpik. Harkin was told that Towpik and two other surgeons did not see a considerable displacement, but that further surgery might be considered after another consultation.
Harkin issued a personal injuries summons on 13 July 2011, shortly before the two-year limitation period expired. It claimed damages for personal injury arising from negligence and breach of duty, although it also referred to breach of contract. Further particulars sent in July 2012 set out separate allegations in negligence and contract and referred to a consultant’s report.
The court considered whether the consumer-contract provisions of the Brussels I Regulation allowed Harkin to sue in Ireland. Those provisions can permit a consumer to sue in their home state when a trader directs commercial activity there. Kearns said the evidence did not show that the defendants had directed their activities to the Irish market. The website used a UK domain; the telephone number supplied was English and lacked an international dialling code; and payment was in sterling. Harkin first met Towpik, was examined and underwent the operation in Poland, where she also signed the consent form. Most of the procedure’s cost was paid there.
Kearns also described the proceedings as, in substance, a medical negligence claim in tort, and said the proposed contractual basis was “highly questionable on the facts.” He granted the relief sought in the defendants’ motion. The judgment does not specify the precise form of the order beyond granting that relief.