The Soldiers, Sailors, Airmen and Families Association - Forces Help and Another v Allgemeines Krankenhaus Viersen GmbH
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] UKSC 29 |
| Year | 2022 |
| Court | Supreme Court |
2022 March 29, 30; Nov 2
Conflict of laws - Contribution claim - Choice of law - Claim for damages alleging defendants liable for injuries suffered by claimant during birth at hospital in Germany - Defendants claiming contribution from German hospital - Claim for contribution time-barred under German law but not under English law - Whether English statute having mandatory or overriding effect so as to apply to all proceedings for contribution brought in England and Wales -
The claimant suffered brain damage during his birth in a hospital in Germany which provided medical services to members of the United Kingdom armed forces and their families. Some years later he brought proceedings in England against the charity which had supplied the midwife and the Ministry of Defence, alleging that the brain damage had been caused by the midwife’s negligence for which both defendants were vicariously liable. The defendants denied liability and brought a claim against the hospital, seeking a contribution under section 1 of the Civil Liability (Contribution) Act 1978F1 on the basis that the hospital was liable in respect of the same damage as the defendants. It was common ground that if the domestic choice of law rules applied, the contribution claim would be governed by German law and would be time-barred. However, on a preliminary issue the judge held that the 1978 Act had mandatory or overriding effect and applied automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules, with the consequence that the contribution claim was governed by English law, pursuant to which it was not time-barred. The Court of Appeal upheld the judge’s decision.
On the hospital’s further appeal—
Held, allowing the appeal, that the Civil Liability (Contribution) Act 1978 contained no express provision that it applied regardless of the law otherwise applicable to a contribution claim, and its provisions, specifically sections 1(6), 2(3)(c) and 7(3), were neutral as to whether overriding effect was to be implied, being equally consistent with the 1978 Act applying only where the applicable law of the contribution claim, determined pursuant to domestic choice of law rules, was English law; that if the 1978 Act were not given overriding effect, there would nevertheless be many situations in which domestic choice of law rules at common law would lead to the conclusion that English law governed the contribution claim, notwithstanding that the underlying liabilities of the party seeking contribution and the party from whom contribution was sought were governed by a foreign law; that, further, there was no good reason why Parliament should have intended to give overriding effect to the 1978 Act, thus conferring a statutory right of contribution whenever the party from whom contribution was sought could be brought before a court in England and Wales and regardless of the law with which the contribution claim had its closest connection; that, therefore, on its true construction, the 1978 Act did not have overriding or mandatory effect and did not apply automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules; and that, accordingly, in the present case, since it was common ground that the application of domestic choice of law rules at common law led to the conclusion that German law governed the defendants’ claims for contribution against the hospital, those claims would be time-barred (post, paras 38, 40, 43–44, 45, 47–48, 51, 53, 68, 80–84).
Per curiam. For the purposes of the common law choice of law rules, the correct characterisation of a claim for contribution under the 1978 Act is that it is sui generis in character, but that it is closely analogous to a restitutionary or quasi-contractual claim. However, the analogy is not a perfect one. Applying the choice of law rules for obligations arising out of unjust enrichment, a strong case can be made out for a prima facie rule that the proper law of a contribution claim under the 1978 Act is the law with which the contribution claim is most closely connected (post, para 33).
The following cases are referred to in the judgment of Lord Lloyd-Jones JSC:
Akai Pty Ltd v People’s Insurance Co Ltd (
American Surety Co of New York v Wrightson (
Arab Monetary Fund v Hashim
Boys v Chaplin [
Cooke v United Bristol Healthcare NHS Trust
Cox v Ergo Versicherung AG
Fluor Australia Pty Ltd v ASC Engineering Pty Ltd
Lister (R A) & Co Ltd v E G Thomson (Shipping) Ltd (No 2) (The Benarty) [
Logan v Uttlesford District Council (unreported) 14 June 1984; [
Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [
Petroleo Brasiliero SA v Mellitus Shipping Inc (The Baltic Flame)
Pfeiffer (John) Pty Ltd v Rogerson [
R (KBR Inc) v Director of the Serious Fraud Office
Raiffeisen Zentralbank Österreich AG v Five Star Trading LLC
Royal Brompton Hospital NHS Trust v Hammond
Virgo Steamship Co SA v Skaarup Shipping Corpn (The Kapetan Georgis) [
The following additional cases were cited in argument:
Bilta (UK) Ltd v Nazir (No 2)
Brownlie v FS Cairo (Nile Plaza) LLC
Clark v Oceanic Contractors Inc [
Comex Houlder Diving Ltd v Colne Fishing Co Ltd
Edmunds v Simmonds [
Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5)
Syred v Powszechny Zaklad Ubezpreczen (PZU) SA
APPEAL from the Court of Appeal
By a claim form issued on 31 December 2004, the claimant, Harry Roberts, by his mother and litigation friend, Lauren Roberts, brought a claim against the defendants, the Soldiers, Sailors, Airmen and Families Association and the Ministry of Defence, seeking damages for personal injury in connection with the circumstances of his birth on 14 June 2000 in Germany, where his father had been serving as a member of the armed forces, at a hospital where the claimant had been delivered by a midwife supplied by the first defendant. He alleged that he had suffered an acute profound hypoxic brain injury as a result of negligence by the midwife for which both defendants were vicariously liable. The defendants filed a defence and issued third party proceedings on 17 February 2016 against Allgemeines Krankenhaus Viersen GmbH, the operator of the hospital, on the basis that pursuant to the Civil Liability (Contribution) Act 1978 the third party was liable in respect of the same damage as the defendants. It was accepted that if the common law “choice of law” rules applied, the contribution claim would be governed by German law and would be time-barred. The third party filed a defence dated 12 September 2017 denying negligence but also averring that the defendants’ contribution claim was time-barred under German law.
On 15 May 2018 Master Yoxall directed that a preliminary issue be tried in the third party proceedings (as narrowed by a consent order dated 10 October 2018) as to whether or not the 1978 Act had mandatory or overriding effect and applied automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. By a judgment dated 3 May 2019 Soole J [2019] EWHC 1104 (QB); [
By an appellant’s notice dated 24 May 2019 and with the permission of Soole J the third party appealed. By a judgment dated 17 July 2020 the Court of Appeal (David Richards, Irwin and Phillips LJJ) [2020] EWCA Civ 926; [
With permission of the Supreme Court (Lord Lloyd-Jones, Lady Arden, Lord Sales JJSC) given on 26 July 2021 the third party appealed. The issue on the appeal was whether the 1978 Act had mandatory or overriding effect such that it applied to contribution claims brought in the English court without reference to the law applicable to the contribution claim otherwise indicated by any choice of law analysis.
The facts are stated in the judgment of Lord Lloyd-Jones JSC, post, paras 2–6.
Charles Dougherty KC and Benjamin Phelps (instructed by
Charles Hollander KC (instructed by
The court took time for consideration.
2 November 2022. LORD LLOYD-JONES JSC (with whom LORD REED PSC, LORD HODGE DPSC, LORD KITCHIN JSC and LORD HUGHES agreed) handed down the following...
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Supreme Court Finds Civil Liability (Contribution) Act 1978 Applies Only Where Contribution Claim Governed By English Law
...is governed by English law: The Soldiers, Sailors, Airmen and Families Association - Forces Help v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29. In doing so, the Supreme Court disagreed with the conclusion reached by the Court of Appeal and the High Court. The effect in the current c......