The HSE is claiming in High Court proceedings that an inflatable mortuary it purchased proved defective once erected in April 2020 in response to the emerging Covid crisis.
UK-based manufacturer Roftek Limited is being sued by the HSE for alleged negligence, misrepresentation, and breach of contract and duty in its sale and supply of the allegedly defective “flexmort mortuary”.
Roftek denies the allegations. The HSE says the product was purchased from the Gloucestershire firm for €84,000 and was delivered in October 2018.
It was transferred to Collins Barracks in Cork city on March 16th, 2020, and inflated in preparation for Covid-19, according to the HSE.
It is alleged the dome collapsed at the end of April and a tear along a seam was identified. The HSE claims it contracted JB Roche, a specialised manufacturer of inflatable products, who repaired the tear, but within 46 hours the dome deflated again and upon further inspection, numerous holes were identified and repaired.
Pre-trial motion
The details of the case emerged in Mr Justice Mark Heslin’s ruling dismissing Roftek’s pre-trial motion asking the court to strike out the HSE’s claim for being brought in the wrong jurisdiction.
Roftek wanted the proceedings dismissed over what it claimed were “cumulative errors” in the HSE’s legal papers.
During the hearing of the motion, said the judge, the HSE accepted it specified incorrect sections of European Council regulations, referred to as the Recast Regulations.
The HSE said it should have cited Article 7 of the regulations, which allows a person to sue over the sale of goods that were delivered to an EU member state.
A section of the withdrawal agreement between the UK and the EU stipulated that the Recast Regulations shall apply to proceedings instituted before the December 31st 2020 end of the transition period in the UK’s exit from the EU, said the judge.
The HSE’s solicitor said the appropriate UK receiving agency sent an acknowledgement of receipt of the proceedings, to be served on Roftek, on December 30th, 2020.
Roftek’s lawyers submitted it was not served with the documents until February 11th, 2021.
Mr Justice Heslin did not agree there had been cumulative errors, finding instead there was a single error in specifying the wrong section of the Recast Regulations.
He was satisfied he should not strike out the case for what is, “in essence”, a drafting error that can be amended without causing prejudice to Roftek.
The judge also said there was a “fundamental dispute of fact” about whether the HSE ever received Roftek’s terms and conditions.
It is far from clear, he added, that an exclusive jurisdiction clause in the terms and conditions was known to the HSE at the time of the sale.
The HSE has established jurisdiction, so the case will proceed before the Irish High Court, the judge ruled. He added it can bring a motion to alter its legal papers to cite Article 7.
