Roberts v The Soldiers, Sailors, Airmen And Families Association & Anor

The Civil Liability (Contribution) Act 1978 has mandatory or overriding effect in contribution proceedings brought in England and Wales. It therefore applies despite ordinary choice of law rules, including where applicable foreign law would provide no equivalent right of contribution or would time-bar the claim.

The proper analysis remains sequential. The court must first classify the contribution claim and identify its governing law under ordinary conflict rules. It must then ask whether the 1978 Act displaces that choice of law. The Act’s references to private international law, its treatment of foreign limitations and its provision that other contribution rights are superseded support the implied overriding effect.

The claimant’s proposed claims arose from medical treatment in Germany in 2000. The First and Second Defendants denied liability but brought Part 20 contribution proceedings against the German hospital under the Civil Liability (Contribution) Act 1978.

The hospital argued that German law governed the contribution claim under common law choice of law rules. By reference to German limitation law and section 1 of the Foreign Limitation Periods Act 1984, it contended that the claim was time-barred. The Part 20 claimants accepted that consequence if German law applied, but argued that the 1978 Act had overriding effect. The preliminary issue was whether the Act applied automatically to contribution proceedings in England and Wales without reference to choice of law rules.

1. Preliminary issue determined. The court held that the Civil Liability (Contribution) Act 1978 has mandatory or overriding effect. The contribution claim was therefore not defeated at the threshold by ordinary choice of law rules.
2. The court rejected an analysis under which the statutory cause of action itself answered the choice of law question. In a claim with a foreign element, the court must first classify the claim, select the relevant conflict rule and identify the governing legal system. Only then does the question arise whether a mandatory rule of the forum displaces that result.
3. The court nevertheless held that Arab Monetary Fund v Hashim (No 9) was not wrongly decided. Properly understood, Chadwick J’s reasoning treated the 1978 Act as containing rules which determined when it applied to foreign-element cases and therefore as overriding the otherwise applicable law.
4. Applying Cox v Ergo Versicherung AG, the court held that overriding effect could be implied. The Act contains no express provision, but sections 1(6) and 2(3)(c) expressly contemplate the use of foreign law in particular respects. In that context, Parliament’s specification of those respects supports the inference that the statutory right itself was not subject to ordinary choice of law rules.
5. Section 7(3), providing that the statutory right supersedes other rights of contribution, is consistent with that conclusion and includes rights which would otherwise arise under foreign law. Sections 1(3) and 1(6) also make it anomalous to allow foreign limitation law to defeat the application of the Act when the Act expressly addresses foreign law and limitation.
6. The implication was independently justified because the statutory purpose could not be effectively achieved if foreign law could remove the right of contribution, and because the policy of ensuring contribution between persons liable for the same damage was sufficiently significant in English law. The preliminary issue was answered in favour of the Part 20 claimants.