Court of Appeal holds Contribution Act applies notwithstanding different proper law

17/07/20

The Court of Appeal has given judgment in the much-awaited case as to whether the Civil Liability (Contribution) Act 1978 applies to all cases before the English courts, even where the proper law of the right to contribution is not English law.

A personal injury action brought as a result of brain damage suffered at birth to a boy whose father was serving in the British army in Germany is throwing up a plethora of difficult issues of private international law.

In Roberts v SSAFA/Ministry of Defence proceedings were brought on behalf of the boy, Harry Roberts, against SSAFA (a charity supplying midwife services to British army personnel) and the Ministry of Defence (who indemnify SSAFA) contending that the British midwife was negligent in the birth. SSAFA/MOD denied liability and brought Part 20 proceedings against the German hospital which employed the doctors responsible for the birth, Allgemeines Krankenhaus Viersen Gmbh (“AKV”) for contribution.  Dingemans J had previously rejected a contention under the Brussels Regulation recast that the Part 20 proceedings should be heard in Germany [2017] PNLR 10.  Foster J recently accepted SSAFA’s submission that the proper law of the Claimant’s claim against SSAFA was German law but concluded after a four day preliminary issue that the claim against SSAFA was not time-barred under German law [2020] EWHC 994 (QB).

AKV argued that the applicability of the Civil Liability (Contribution) Act 1978 was subject  to private international law rules, and, as the proper law of the Part 20 proceedings was German law, so too the question whether SSFA/MOD could claim contribution from AKV was subject to German law. If correct, that would mean that the Part 20 proceedings were time barred.  AKV argued that in accordance with Lord Sumption’s judgment in Cox v Ergo Versicherung AG [2014] AC 1379 private international law rules should determine whether the statute was applicable unless the statute expressly or implicitly provided that it had “extra-territorial” effect.

The only decision directly in point was Arab Monetary Fund v Hashim (No 9) (The Times 10 October 1994) where Chadwick J had held that the Act applied in all proceedings before the English courts, consistent with dicta in The Benarty [1987] 1 WLR 1614 (Hobhouse J) The Kapetan Georgis [1988] 1 Lloyds Rep 352 (Hirst J) and The Baltic Flame [2001] 2 Lloyds Rep 203 (Court of Appeal).  

Rejecting the view pretty well universally taken by academic writers on the point (including both Professor Adrian Briggs and editions of Dicey which predated Hashim) the Court of Appeal (Irwin, Stephen Phillips and David Richards LJJ) accepted SSAFA’s submission and held that on a proper construction of the Act, it applied to all proceedings before the English courts notwithstanding rules of private international law.

Thus the Court of Appeal found for SSAFA/MOD and it followed that the Part 20 claim against AKV was not time-barred.

The judgment is here.