Roberts v The Soldiers, Sailors, Airmen And Families Association - Forces Help & Anor (Rev 1)

The Civil Liability (Contribution) Act 1978 has extraterritorial effect. It creates a statutory right to contribution in English proceedings even where ordinary private international law would make the contribution claim subject to foreign law. Under section 1(6), the relevant liabilities must have been or be capable of being established in an action in England and Wales. It is immaterial that foreign law determines issues in that action. The statutory scheme, including section 7(3), supersedes foreign-law rights of contribution except for express contractual rights. The presumption against extraterritoriality is rebutted by the Act’s language and purpose. Its object of standardising contribution would otherwise be undermined once primary liability can be established in England. The appeal was dismissed.

The claimant suffered brain damage at birth in Germany. He sued SSAFA and the Ministry of Defence, with the Ministry indemnifying SSAFA. SSAFA and the Ministry brought Part 20 contribution proceedings against the German hospital. The parties agreed that German law governed contribution under ordinary private international law and that the claim would be out of time under German law.

The preliminary issue was whether the Civil Liability (Contribution) Act 1978 had mandatory or overriding effect. Soole J held that it did, in [2019] EWHC 1104 (QB). The hospital appealed. The central question was whether the Act applied to contribution proceedings in England and Wales despite the foreign choice of law.

The Court of Appeal unanimously dismissed the appeal.

1. Statutory construction. Whether an English statute has extraterritorial effect is a question of construction, subject to a presumption against such effect. Applying the approach in Cox v Ergo Versicherung AG ([2014] UKSC 22), the presumption is rebutted where extraterritoriality is plainly implied by the statutory language, or where the legislation cannot operate effectively or its sufficiently significant forum policy cannot be achieved without it. The passages from Cox were accepted as authoritative, although strictly obiter in that case.
2. Section 1(6). The relevant liabilities must have been or be capable of being established in an action brought in England and Wales. It is immaterial that foreign law determines issues in that action. The requirement concerns substantive liability and does not impose a separate condition that liability remain procedurally enforceable as a current or subsisting claim. The reasoning in Petroleo Brasíliero SA v Mellitus Shipping Inc (The Baltic Flame) ([2001] EWCA Civ 418) was consistent with that distinction.
3. Section 7(3) and the statutory purpose. The majority, comprising Irwin LJ and Phillips LJ, held that the reference to any right to recover contribution includes rights arising under foreign law. The statutory right therefore supersedes such rights, subject to express contractual rights. Section 2(3)(c) was consistent with that construction but added little independent support. The Act was intended to standardise and simplify contribution claims once primary liability could be established in England. It would otherwise create a statutory lacuna if foreign law could defeat contribution after that threshold was met.
4. Separate reasoning. David Richards LJ agreed with the result but considered that section 7(3) was consistent with either construction and was not itself determinative. In his view, sections 1(1) and 1(6) made the conclusion inescapable. He also rejected the suggestion that the absence of a foreign right of contribution was itself a defect in English law.

• Court of Appeal (Civil Division) — In [2020] EWCA Civ 926, the appeal was dismissed. The court held that the Civil Liability (Contribution) Act 1978 had mandatory or overriding effect.
• High Court of Justice, Queen’s Bench Division — Soole J decided the preliminary issue in favour of the Act having overriding effect, in [2019] EWHC 1104 (QB).