The High Court has allowed Arthur Cox & Co. to come off record for the late surgeon Samy Malhas in two claims over cosmetic surgery, subject to undertakings on costs. It also struck out applications to appoint a representative of his estate, finding that an appointment would achieve nothing while the Medical Defence Union (MDU) had decided to withdraw assistance.
The judgment, delivered by Mr Justice Birmingham on 4 June 2014, dealt with the cases together. The claims concern a breast uplift performed in 2003 at Advanced Cosmetic Surgery Limited in Mount Merrion and a rhinoplasty performed in 2007 at Cosmedico Clinic Dublin Limited. The plaintiffs allege harm and negligence; the court was addressing representation and costs motions, not deciding the underlying claims.
In the Moloney proceedings, the defence denied that Malhas had failed to inform the plaintiff of surgical risks. Advanced Cosmetic Surgery was in liquidation and had no insurance cover for the surgery. In the Shortt proceedings, Malhas’s defence admitted only that excessive removal of skin caused a small depression on the left side of the plaintiff’s nose and that the procedure was suboptimal to that extent. Other allegations were denied, and the defence pleaded contributory negligence. Cosmedico remained in existence and had insurance, subject to a substantial excess.
Malhas died in Germany on 9 January 2013. The court was told there was no estate from which instructions could be taken. The MDU, which had previously agreed to assist him on a discretionary basis and had instructed Arthur Cox & Co., decided not to provide further assistance. The plaintiffs opposed the solicitors’ applications to come off record; in the Shortt case, Cosmedico also opposed them.
The judge said the court’s role on these motions did not include deciding whether the MDU was entitled to withdraw assistance. For Shortt, he made permission to come off record conditional on an undertaking to pay the plaintiff’s and Cosmedico’s costs of the motion. For Moloney, he required an undertaking to pay the plaintiff’s motion costs and reimburse her litigation outlay. He said the latter condition reflected the risk that the proceedings might not have been brought had MDU support not been indicated, while also considering the delay before trial and the circumstances of Malhas’s death. If the required undertaking in Moloney was not provided, the application would stand refused.
The court made no appointment to represent Malhas’s estate, but said the actions could proceed without an estate representative if that was considered desirable. It struck out the O. 15, r. 37 motions with no order as to costs. Permission for Arthur Cox & Co. to come off record remained subject to the specified undertakings being provided.