PI Brief Update

The Civil Liability (Contribution) Act 1978 Is Without Overriding Effect - Sebastian Bates, Temple Garden Chambers

22/11/22. The Soldiers, Sailors, Airmen and Families Association – Forces Help v Allgemeines Krankenhaus Viersen GMBH [2022] UKSC 29

Introduction

The question in The Soldiers, Sailors, Airmen and Families Association – Forces Help was whether the Civil Liability (Contribution) Act 1978 has mandatory or overriding effect (“overriding effect”) so that it applies to all contribution claims brought in England and Wales, or whether it applies only when domestic choice of law rules indicate that the contribution claim in question is governed by the law of England and Wales: see [1].

Summary

Lord Lloyd-Jones JSC took as his starting point (at [27]) ‘the identification of the appropriate law by the application of domestic choice of law rules’, which in this case were the common law rules as the alleged tort had taken place before 11 January 2009. As reflected in [28], it was common ground that these dictated that ‘issues of contribution [. . .] are governed by German law’. From that paragraph through [34], he nevertheless considered ‘how choice of law rules at common law might apply to a statutory right of contribution’. He concluded that ‘a strong case can be made out for a prima facie rule that the proper law of a contribution claim under the 1978 Act is the law with which [one liable party’s] claim against [another] is most closely connected’ and that ‘[i]t [was] against this background that it [was] necessary to consider whether the 1978 Act [had been] intended to have overriding effect or whether its provisions apply to contribution proceedings only when English law is applicable pursuant to choice of law rules’. Accordingly, the ‘question for consideration’ was ‘whether Parliament [had] cut across the normal rules of the conflict of laws and laid down special rules for the application of the 1978 Act’.

Lord Lloyd-Jones JSC could see nothing in the Act expressly or impliedly providing for overriding effect: see [37]–[48]. Having considered its history at [49]–[51], he concluded that there was nothing to support the view that the Act has overriding effect. He observed, at [52]–[55], that the Law Commission was of the contrary view in the years following its enactment.

Lord Lloyd-Jones JSC then considered the authorities invoked in favour of the Act’s overriding effect, noting (at [60]) that ‘the issue of overriding effect was not argued’ in a number of these cases and critiquing (at [68]) the reasoning as to the issue in Arab Monetary Fund v Hashim (No 9). After largely dismissing an Australian judgment as ‘of only indirect relevance’ at [72], he turned to ‘academic commentary’ at [73]–[76], describing criticism of Arab Monetary Fund as ‘compelling’.

Conclusion and Comment

Drawing these threads together, Lord Lloyd-Jones JSC described himself (at [81]) as ‘persuaded that the 1978 Act was not intended to have overriding effect so as to displace conventional choice of law rules’. This conclusion will be significant to practitioners acting for parties liable alongside others for a tort where the proper law is foreign.

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