Roberts v Soldiers, Sailors, Airmen and Families Association – Forces Help  EWCA Civ 926
The Court of Appeal has confirmed that the Civil Liability (Contribution) Act 1978 (“the 1978 Act”) has extra-territorial effect and applied its limitation period to a contribution claim brought by the MOD and Soldiers, Sailors, Airmen and Families Association – Forces Help (“SSAFA”) against a German Hospital in the context of clinical negligence litigation.
The underlying clinical negligence proceedings were covered in detail in Issue 6. In summary, the Claimant was born in a German Hospital, “AKV”, in 2000 and suffered brain damage at birth. It was alleged that this was caused by the negligence of an English midwife working at AKV. The midwife was employed by SSAFA. Proceedings were brought in the High Court against SSAFA and the MOD. SSAFA and the MOD in turn brought contribution proceedings against AKV.
The Court of Appeal was tasked with determining whether, as a matter of statutory construction, the 1978 Act had extra-territorial effect. The parties agreed that if German law applied to the contribution claim, it would be out of time. However, if the 1978 Act had extraterritorial effect and liability arose under it, the contribution claim would be in time.
The key provisions of the 1978 Act under analysis were as follows:
“1 Entitlement to Contribution
(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).
(6) References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales.
(3) The right to recover contribution in accordance with section 1 above supersedes any right, other than an express contractual right, to recover contribution (as distinct from indemnity) otherwise than under this Act in corresponding circumstances; but nothing in this Act shall affect –
(a) any express or implied contractual or other right to indemnity; or
(b) any express contractual provision regulating or excluding contribution;
which would be enforceable apart from this Act (or render enforceable any agreement for indemnity or contribution which would not be enforceable apart from this Act).”
At first instance, Soole J found that the Act did have extra-territorial effect.
Reasoning of the Court of Appeal
The natural meaning of the statute
Irwin LJ began by noting that entitlement to bring a contribution claim under the Act depended on threshold conditions in section 1, including the condition under s.1(6), whereby the liability of each tortfeasor to the claimant is confined to “the liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage”. The subsequent qualification in s.1(6), namely that “it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales”, showed that the liability had to be able to be established in an English court, but not necessarily by application of English law . On the face of it, the threshold condition could therefore be established where an English court would give judgment against both tortfeasors, even when applying foreign law to all the issues in the case. Irwin LJ noted: “If by its own terms the Act applies in relation to the principal liability of the tortfeasors, even where the proper law of the tort is foreign law, then why should a consequential contribution claim where the proper law of the claim is foreign law, fall outside the ambit of the Act?” .
Irwin LJ went on to accept the Respondent’s interpretation of the Respondent of s.7(3), finding that it was difficult to see why the right to recover contribution under the 1978 Act, which by virtue of s.7(3) “superseded any right, other than an express contractual right, to recover contribution”, would not include provisions of foreign law [59-61]. The German law which would otherwise have applied to the contribution claim could therefore be displaced.
The purpose of the statute
Irwin LJ held that it was “tolerably clear” that Parliament’s purpose in enacting the 1978 Act had been to “simplify and standardise” contribution claims . Further, s.1(6), stipulating that liability must be capable of being established in England, also stipulated that it might be established on the basis of foreign law. Irwin LJ considered that if that was established in a given action, there was an obvious question as to what law would govern the contribution claims in such cases. It was notable that “it would have been simplicity itself to provide that where the proper law of the contribution claim was a foreign law, then the statutory right did not arise. Parliament set no such limit or exclusion” . The natural interpretation of the language of the Act therefore sat well alongside the standardisation and simplification purpose.
Principles of extra-territorial effect
Finally, Irwin LJ held that this interpretation was consistent with principles of extra-territorial effect articulated in Cox v Ergo Versicherung AG  UKSC 22 by Lord Sumption. These were that unless the contrary was expressly enacted or so plainly implied that the courts had to give effect to it, UK legislation was not extraterritorial in effect. The relevant question in the instant case was therefore whether anything in the language of the Act suggested that its provisions were intended to apply irrespective of the choice of law derived from ordinary principles of private international law. Irwin LJ held that the language of s.7(3) had that effect .
Phillips LJ agreed with Irwin LJ’s analysis; however, although David Richards LJ agreed that the 1978 Act had extra-territorial effect, he based his conclusion on s.1(6), finding that the language of s.7(3) was consistent with either outcome .
This is an important decision with significant practical effect for clinical negligence litigation involving contribution claims in an international context. It suggests that in claims for contribution or indemnity which are heard in the courts of England and Wales, the 1978 Act will apply, including its provisions on limitation. However, take note that this is not a certitude in all cases: the applicable law in this case was not governed by the Rome II Regulation which would apply to contribution claims relating to damage after 11 January 2009. The position as regards extra-territoriality in such cases is yet to be resolved by the courts.