The High Court has awarded the Health Service Executive the costs of an unsuccessful application by Roftek Limited to strike out proceedings over an allegedly defective mortuary tent. The costs are to be adjudicated if the parties cannot agree the amount.
In a ruling delivered on 31 January 2023, Mr Justice Mark Heslin said the HSE had been “entirely successful” in the application and was presumptively entitled to its costs. He found no particular circumstances that justified departing from the general rule that costs follow the event.
The ruling addressed the costs of the application, following the court’s judgment of 15 December 2022 dismissing Roftek’s application. The judgment itself is not included in the source for this draft; the costs ruling recounts that the court rejected Roftek’s arguments on two main issues. Roftek argued that the proceedings should be struck out for cumulative errors and that its trading terms gave the courts of England and Wales exclusive jurisdiction. The judge said the evidence did not establish that the HSE received those terms or relied on a warranty in them.
The HSE accepted that its summons incorrectly referred to sections of the Brussels Recast Regulation instead of Article 7. The judge said this drafting error could be amended without prejudice to Roftek and did not justify denying the HSE its costs. He also rejected the argument that the HSE should have applied to amend earlier, noting that the application could not have been determined before the strike-out motion was decided.
The ruling records that proceedings were served in the United Kingdom on 11 February 2021 and that Roftek entered a conditional appearance on 25 February 2021 to contest jurisdiction. The judge also noted that Roftek had evidence by 27 January 2022 that the proceedings had reached the relevant UK receiving agency before the end of the post-Brexit withdrawal period, but did not withdraw its application. A separate challenge concerning when UK authorities received documents was abandoned on the morning of the hearing.
The court ordered that the HSE may apply to amend the plenary summons within 21 days. Any amended summons must be served by registered post and email on Roftek’s solicitors. Roftek must enter an appearance within five weeks of service.