Supreme Court Finds Civil Liability (Contribution) Act 1978 Applies Only Where Contribution Claim Governed By English Law

• Published date: 24 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The Supreme Court has held that the Civil Liability (Contribution) Act 1978 does not have overriding effect and therefore applies only where domestic conflict of laws rules indicate that the contribution claim in question is governed by English law: The Soldiers, Sailors, Airmen and Families Association - Forces Help v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29.

In doing so, the Supreme Court disagreed with the conclusion reached by the Court of Appeal and the High Court. The effect in the current case was that, since the underlying contribution claim was governed by German law, and under German law the relevant limitation period had expired, the contribution claim could not be pursued.

The decision is significant in establishing that a contribution claim brought in the English courts will be determined according to the law which governs it applying the usual domestic conflict of laws rules (which will ordinarily, but not necessarily, be the law governing the underlying claims). Only if that law is English law will the 1978 Act apply. Parties wishing to bring contribution claims should therefore keep a close eye on the applicable limitation period under any relevant foreign law, as that law will also govern questions of limitation as a result of the Foreign Limitation Periods Act 1984.

Background

The underlying claim related to a brain injury the claimant suffered at birth at a hospital in Germany when his father was stationed with UK armed forces in Germany. The claimant brought proceedings against the Ministry of Defence and the Soldiers, Sailors and Airmen and Families Association - Forces Help (or SSAFA), which employed the midwife who was said to have been negligent. The two defendants in turn brought a claim for contribution against the third party hospital under the 1978 Act. This provides a right of contribution where another person is liable to the claimant in respect of the same damage.

It was common ground that the claimant's claims against the defendants, and any liability of the third party to the claimant, were all governed by German law. It was also agreed that, applying English conflict of laws rules, German law would apply to the contribution claim - unless the 1978 Act has overriding effect so that it applies irrespective of the applicable law. The parties further agreed that, if the contribution claim was governed by German law, the applicable limitation period would have expired, whereas if the 1978 Act applied that would not...