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

The Civil Liability (Contribution) Act 1978 is not an overriding mandatory statute. It applies only where ordinary choice of law rules identify English law as the law governing the contribution claim.

A contribution claim under the Act is sui generis but closely analogous to a restitutionary or quasi-contractual claim. At common law, it is governed prima facie by the law with which the contribution claim is most closely connected. That law may differ from the law governing the parties’ underlying liabilities, particularly where the parties have a special relationship governed by English law.

Section 1(6) permits underlying liabilities governed by foreign law to support an English statutory contribution claim. It does not displace the logically anterior choice of law inquiry.

A child allegedly suffered a hypoxic brain injury during his birth in a German hospital. The attending midwife was employed by the first respondent, which was indemnified by the Ministry of Defence. The respondents claimed contribution from the German hospital under the Civil Liability (Contribution) Act 1978.

The parties agreed that German law governed the underlying liabilities and would also govern the contribution claim under ordinary choice of law rules. Under German law the contribution claim was time-barred. Under English law it remained within the period prescribed by the Limitation Act 1980.

Soole J held in [2019] EWHC 1104 (QB) that the 1978 Act had overriding effect. The Court of Appeal unanimously upheld that decision in [2020] EWCA Civ 926. The central issue before the Supreme Court was whether the Act applied automatically to every contribution proceeding brought in England and Wales, irrespective of the law selected by domestic choice of law rules.

1. The appeal was allowed unanimously. The Civil Liability (Contribution) Act 1978 does not have overriding or mandatory effect. It applies to a contribution claim only where conventional choice of law rules select English law. German law therefore governed the respondents’ contribution claims, which were time-barred. Lord Lloyd-Jones gave the judgment, with which Lord Reed, Lord Hodge, Lord Kitchin and Lord Hughes agreed.

2. A contribution claim under the 1978 Act is sui generis but closely analogous to a restitutionary or quasi-contractual claim. At common law, a strong prima facie rule is that it should be governed by the law with which the contribution claim is most closely connected. The law governing contribution can differ from that governing the underlying liabilities. In particular, English law may govern where the parties to the contribution claim have a special relationship centred in England.

3. The Act contains no express provision requiring its application irrespective of the otherwise applicable law. The question was one of overriding effect, rather than extraterritorial application. It concerned the law to be applied by an English court properly seised of a dispute, not an attempt to regulate conduct in another state.

4. Section 1(6) defines the underlying liabilities capable of supporting a statutory contribution claim. Those liabilities may be determined under foreign law. The subsection does not answer the prior question whether English law governs the contribution claim itself. Its second limb retains useful operation without overriding effect because English law may govern contribution even where foreign law governs the underlying liabilities.

5. Section 2(3)(c) merely limits contribution where the person’s underlying liability is limited or reduced under applicable foreign law. Section 7(3) supersedes other contribution rights in circumstances to which the Act applies. Both provisions operate coherently whether or not the Act has overriding effect and therefore provide no support for implying such an effect.

6. The Act’s purpose and legislative history did not show an intention to displace ordinary choice of law rules. Parliament had no evident reason to use English contribution law to correct perceived deficiencies in a foreign system. Applying the law most closely connected with the claim also respects the parties’ reasonable and legitimate expectations.

1. United Kingdom Supreme Court: Allowed the hospital’s appeal in [2022] UKSC 29. It held that German law governed the contribution claims and that they were time-barred.

2. Court of Appeal: In [2020] EWCA Civ 926, unanimously dismissed the hospital’s appeal and upheld the conclusion that the Civil Liability (Contribution) Act 1978 had overriding effect.

3. High Court: Soole J held in [2019] EWHC 1104 (QB) that the 1978 Act applied to all contribution claims brought in England and Wales, regardless of the law selected by choice of law rules.