The claimant was born at a hospital in Germany which provided medical services to members of the United Kingdom armed forces and their families. Some years later he brought proceedings in England against the charity which had supplied the midwife and the Ministry of Defence, alleging that he had suffered an acute profound hypoxic brain injury as a result of the midwife’s negligence for which both defendants were vicariously liable. The defendants denied liability and issued a CPR Pt 20 claim against the hospital, seeking a contribution under section 1 of the Civil Liability (Contribution) Act 1978. It was accepted that if the common law choice of law rules applied, the contribution claim would be governed by German law and would be time-barred. A preliminary issue was ordered to be tried as to whether the 1978 Act, under which the claim would not be time-barred, had mandatory or overriding effect and applied automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. On the preliminary issue the judge held, inter alia, that: (1) whether the Civil Liability (Contribution) Act 1978 had overriding effect or “extraterritorial” application, in the sense of imposing such a mandatory rule of the forum so as to displace the proper law of the relevant liability in the present case, namely German law, was a matter of construction of the statute to determine whether the presumption against extraterritorial application was rebutted expressly or by implication; and (2) although the 1978 Act did not expressly provide that it had overriding effect, that was implicit from its provisions, in particular sections 1, 2(3)(c) and 7(3), since (i) the purpose of the Act could not effectually be achieved unless it had extraterritorial effect and (ii) the Act gave effect to a policy so significant in the law of the forum that Parliament had to be assumed to have intended that policy to apply to anyone resorting to an English court regardless of the law that would otherwise apply; and (3) accordingly, the contrary presumption having been rebutted, the 1978 Act had mandatory or overriding effect. The hospital appealed.
On the appeal —
Held, appeal dismissed. The question of statutory construction was to be approached with three principles in mind. Firstly, what was the ordinary and natural meaning of the language considered in context and thus the presumed intention of Parliament. Secondly, what was the purpose of the legislation, so far as that could properly be ascertained. Thirdly, in the context of the instant case, did the approach laid down in authority enfranchise an interpretation of the statute which gave it extraterritorial effect. On a true construction of the provisions of the Civil Liability (Contribution) Act 1978, and in particular sections 1, 2(3) and 7(3) (David Richards LJ dissenting as to the effect of section 7(3)), the Act did have mandatory or overriding effect and applied automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. Accordingly, on the facts, German law would not apply to the defendants’ claims for contribution against the hospital (paras 52, 61–70, 71–74, 83, 88, 90–92, 96).
Charles Dougherty QC (instructed by DAC Beachcroft llp) for the hospital.
Charles Hollander QC (instructed by Treasury Solicitor) for the defendants.
The claimant did not appear and was not represented.