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Court of Appeal Judgment Template Neutral Citation Number: [2020] EWCA Civ 926 Case No: B3/2019/1212 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION Mr Justice Soole [2019] EWHC 1104 (QB) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2020 Before: LORD JUSTICE DAVID RICHARDS LORD JUSTICE IRWIN and LORD JUSTICE PHILLIPS - - - - - - - - - - - - - - - - - - - - - Between: MASTER HARRY ROBERTS (A protected party by his mother and litigation friend Mrs Lauren Roberts) Claimant - and - (1) THE SOLDIERS, SAILORS, AIRMEN AND Respondents/ FAMILIES ASSOCIATION - FORCES HELP Defendants (2) MINISTRY OF DEFENCE -and- ALLGEMEINES KRANKENHAUS VIERSEN GMBH Appellant/ Third Party - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Charles Dougherty QC (instructed by DAC Beachcroft LLP) for the Appellant Charles Hollander QC (instructed by The Government Legal Department) for the Respondents Hearing date: 28 April 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:00am on 17 July 2020. Judgment Approved by the court for handing down. Master Roberts -v- SSAFA & Anr Lord Justice Irwin: Introduction 1. In this case the point at issue is a single piece of statutory interpretation. The question is whether the Civil Liability (Contribution) Act 1978 (“the 1978 Act”) has extraterritorial effect. 2. In June 2000, the claimant Master Harry Roberts suffered brain damage at birth in the Viersen General Hospital (“AKV”) in Germany. His claim is that this occurred as a result of the negligence of the attendant midwife, who was employed by the first defendant the Soldiers, Sailors and Airmen and Families Association – Forces Help (“SSAFA”). He also sued the Ministry of Defence. The Ministry of Defence will indemnify SSAFA in respect of any successful claim. 3. There are third party proceedings between SSAFA and MoD, which are only effective if the claimant succeeds against SSAFA. The basis of the contribution claim is the statutory liability laid down by the 1978 Act. The relevant sections from the 1978 Act are sections 1, 2(3), 6(1) and 7(3). For convenience, they are annexed to this judgment. As I have said, the critical point is whether the 1978 Act has extraterritorial effect. It is agreed that under the operation of private international law, the proper law of the liability for contribution would be German law. It is also agreed that if German law applies to the contribution, then the claim for contribution will be out of time. If however the 1978 Act has extraterritorial effect, and the liability arises under the Act, the contribution claim will be in time. 4. In approaching the interpretation of the statute, the parties have considered the language of the statute, and have also considered a purposive interpretation of the statute, amongst other things looking at the travaux preparatoires. The parties have made extensive reference to academic commentary and judicial decisions on analogous questions under this statute, and I consider it is helpful to begin by examining the history and the origins of the Act, including its introduction before Parliament. The preliminary issue 5. The appeal arises from a preliminary issue as defined by Master Yoxall, following consent of the parties, as follows: “a. the defendant’s claims for contribution against the part 20 defendant will not be time-barred if the question whether the defendants are entitled to contribution is covered by English law by reason of the applicability of the Civil Liability (Contribution) Act 1978…, but will otherwise be time-barred because German law applies; b. the relevant question for the purposes of the trial of the preliminary issue is whether or not the 1978 Act has mandatory or overriding effect and applies automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. If not, German law will Judgment Approved by the court for handing down. Master Roberts -v- SSAFA & Anr apply to the Defendants’ claims for contribution against the Part 20 Defendant and they will be time-barred”. The Background to the Act 6. The Law Reform (Contributory Negligence) Act 1945 [ “the 1945 Act”] made radical reform to the law of tort. The statute introduced the concept of contributory negligence. Against that background the distinguished jurist Prof Glanville Williams considered the law of contribution in relation to the conflict of laws, in his book entitled “Joint Torts and Contributory Negligence” 1951. At page 414, he wrote: “A converse question is when the English courts will enforce a right of contribution arising under a foreign system of law. It is clear that both these questions – the scope of the English Act and the effect to be given to foreign systems – should be answered on the same principle; but on what that principle is there is little authority. It is submitted that the matter in issue is not one of procedure, governed by the lex fori, but is a substantive-law claim arising e lege (whether it is called a quasi-contractual or a statutory claim makes no difference). There appear to be two possible ways in which the choice of law may be made. Since the right of contribution arises out of a tort, it may be held to be governed by the same law as the tort, namely the lex loci delicti. An analogy for his might be found in the Law Reform (Frustrated Contracts) Act, 1943, s.1(1), which makes the claim for restitution consequent upon a frustrated contract dependent on the law governing the contract. Alternatively, since the right of contribution rests upon the notion of unjust enrichment, it may be held to be governed by the law of the place of enrichment. This raises the question where is the place of enrichment. The defendant’s enrichment occurs because the plaintiff, by satisfying the judgment debt or tortious liability, has satisfied a liability that ought sue D2 for contribution, notwithstanding that it may be just as difficult for D2 to resist the claim for contribution after the lapse of this time as if he were being directly sued for damages by P. It is submitted that while D1 should have an extra period of time after satisfying P’s claim in which to sue D2, he does not need as long a period as six years. It might be provided by legislation that D1 should be able to enforce his right to contribution within either of two periods, whichever is the greater: (1) the same period as that in which the injured plaintiff can enforce his claim against the contributor, (2) the period of say one or two years after the liability of the claimant is ascertained or the injured plaintiff’s damages paid, with a discretion in the court to extend the period in meritorious cases (as where it has been practically impossible to serve the defendant). Judgment Approved by the court for handing down. Master Roberts -v- SSAFA & Anr Where a claim for contribution is made under the heading of damages in accordance with the argument in §§32-3, time commences to run when the cause of action accrues. This means, where the action is for negligence, that it accrues on the first occurrence of damage. Suppose that P is a passenger in a car driven by D2, whom he has exempted from liability for negligence: there is a collision between this car and a lorry driven by D1, owing to the negligence of both drivers, and P and D1 are injured. P sues D1, and D1 sues D2 for damages for his own injuries and damages for the damages that he has had to pay P. Time runs from the accident, for that was when D1 suffered the first damage. But now suppose that D1 was not injured, and that his only damage was his liability to P. Did his damage occur when this liability arose (i.e. when P was first damaged), or does it occur only when he pays damages to P? The question has not been decided, but it is suggested that the simpler alternative and on the whole the better one is the first. This would mean that when contribution is claimed by way of damages, time runs from the same moment as in the injured plaintiff’s action. The question whether a tortfeasor who has settled a statute- barred claim can sue for contribution was discussed in §31 (e) (ii). The period of limitation for claims to contribution under s.3 of the Maritime Conventions Act, that is to say in respect of an overpaid proportion of any damages for loss of life or personal injuries (§32), is one year (see s.8 of that Act). The period of limitation for claims to contribution by way of damages for tort under the decision in part to have been borne by the defendant. It may therefore be thought that the place of enrichment is the country where the tortious liability arose – which puts us back to the lex loci delicti. Alternatively, it may be thought that the place of enrichment is the place where the present plaintiff made the payment to the victim of the tort. This place, however, is perfectly fortuitous so far as the defendant is concerned, for the payment was not made to him and he was no party to it. On the whole, therefore, the argument seems to be in favour of the lex loci delicti. This means that the Tortfeasors Act should apply to torts committed in England, while for torts committed in other jurisdictions the question of contribution should be regulated by the law of the place of commission of the tort.” 7.
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