The Soldiers, Sailors, Airmen and Families Association – Forces Help and another v Allgemeines Krankenhaus Viersen GmbH

The Supreme Court considered whether the Civil Liability (Contribution) Act 1978 has an overriding or mandatory effect so that it applies to all contribution claims brought in England and Wales irrespective of the law identified by domestic choice of law rules. The court held that the 1978 Act does not have overriding effect: ordinary choice of law rules determine whether the statutory right of contribution applies and, absent such a connection to English law, a contribution claim will be governed by the foreign law identified by those rules. The court analysed and rejected the arguments that sections 1(6), 2(3)(c) and 7(3) of the 1978 Act implied an intention to displace choice of law rules, and it relied on the characterisation of contribution claims, the legislative history and Law Commission materials, prior authorities and policy considerations.

Applying that conclusion to the facts, the court held that the defendants’ contribution claim against the hospital was governed by German law and therefore barred by limitation.

Background and parties. The claimant alleged negligent birth care at a German hospital operated by the appellant (Allgemeines Krankenhaus Viersen GmbH). The midwife was employed by SSAFA and the Ministry of Defence indemnified SSAFA. The defendants brought third party proceedings seeking contribution from the hospital under the Civil Liability (Contribution) Act 1978. The parties agreed that the claimant’s underlying claim and any liability of the hospital to the claimant were governed by German law, and that if German law governed the contribution claim the claim was time-barred.

Nature of the application and procedural history. The preliminary issue directed for determination was whether the 1978 Act has mandatory or overriding effect so that it applies regardless of domestic choice of law rules, or whether the Act applies only when English choice of law rules identify English law as governing the contribution claim. Soole J at first instance and the Court of Appeal ([2020] EWCA Civ 926) had held that the 1978 Act has overriding effect. The hospital appealed to the Supreme Court.

Issues framed by the court.

• Whether the Civil Liability (Contribution) Act 1978 is an overriding statute displacing ordinary private international law choice of law rules in contribution proceedings brought in England and Wales.
• If not, what law governs the defendants’ contribution claim against the hospital, and whether that claim is time-barred.

Court’s reasoning. The court began from ordinary choice of law methodology: characterisation, selection of the connecting rule and identification of the governing system of law. It characterised a contribution claim under the 1978 Act as sui generis but closely analogous to restitutionary or quasi‑contractual obligations, and therefore properly subject to choice of law analysis. The court examined the statutory text and scheme, focusing on sections 1(6), 2(3)(c) and 7(3). None of those provisions, properly construed, compelled an inference that Parliament intended to displace the conventional choice of law rules; the provisions are equivocal and are equally compatible with the Act applying only where English law governs the contribution claim. The court reviewed the legislative history and Law Commission material and found nothing to support an intention to create an overriding statutory regime. It considered prior authorities (including decisions that had assumed overriding effect) and academic commentary, and it criticised aspects of Arab Monetary Fund v Hashim (No 9) as circular or unpersuasive. The court also rejected the practical justification that the second part of section 1(6) would otherwise be pointless, observing that there are many plausible situations (for example, where a special relationship between contributors has a closer connection with English law) in which English law will apply to a contribution claim without any implied override. On policy grounds the court saw no reason to suppose Parliament intended to legislate to remedy perceived deficiencies in foreign law by requiring English law to govern contribution whenever a defendant could be brought before an English court.

Disposition and practical effect. The Supreme Court allowed the appeal, answered the preliminary issue by holding that the 1978 Act does not have overriding or mandatory effect, and concluded that German law governs the defendants’ contribution claim against the hospital, with the result that the contribution claim is time‑barred under German limitation rules.

Appeal allowed. The Civil Liability (Contribution) Act 1978 does not have overriding or mandatory effect; ordinary choice of law rules determine whether the statutory right of contribution applies. On the facts, German law governs the defendants’ contribution claim against the hospital and that claim is time-barred.

Appeal from the Court of Appeal ([2020] EWCA Civ 926) which dismissed the appellant’s challenge to Soole J’s decision ([2019] EWHC 1104 (QB)) that the 1978 Act had overriding effect. The Supreme Court ([2022] UKSC 29) allowed the appeal.