Harry Roberts’s case arose out of brain damage sustained during his birth in Germany in June 2000. Infant brain injury cases can be among the most expensive claims if, as is usual, there is a high annual care need and a lengthy life expectancy. This case has added complications because of the cross-border setting and because of a dispute on limitation despite the claimant’s minority.
Master Roberts’s father was a British soldier posted in Germany in 2000. He was delivered in a German hospital, AKV, which employed the doctors involved. The midwives involved were provided by SAAFA, a British Armed Forces charity that supplies medical and welfare services to UK military personnel. Both institutions would be vicariously liable for the actions of the staff in the event of negligence.
Some time after the birth injury, proceedings were commenced in England against SAAFA, which sought to bring in AKV as a part 20 claimant. The questions of jurisdiction and applicable law between the claimant and the two institutions were complicated due to the contribution proceedings between SAAFA and AKV and because the date of the tortious act (and the damage) meant that the rules on applicable law would be those in force before the Rome II regulation.
AKV submitted that Germany was the appropriate jurisdiction for the part 20 or contribution claim. At a preliminary hearing in 2016 Dingemans J dismissed that argument, deciding that article 8(2) of the recast Brussels I regulation applied. This offers an exception to the general rule that defendants are to be sued in the state where they are based. It provides (bold emphasis added) that:
“A person domiciled in a member state may also be sued … (2) as a third party in an action on a warranty or guarantee or in any other third-party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him the jurisdiction of the court which would be competent in his case.”
Separate proceedings in separate countries (ie England and Germany) would have given rise to a real risk of irreconcilable judgments and there was a close connection between the proceedings brought by Master Roberts against SAAFA and those brought by SAAFA against AKV. This meant it would be “rational for, and that the harmonious and efficacious administration of justice requires, the Court to hear both claim and third party proceedings in the same action.”
The date of the tort preceded Rome II and there was a dispute on the applicable law. Section 11 of The Private International Law (Miscellaneous Provisions) Act 1995 would ordinarily designate German law, as Germany was the place of the tort. However, section 12 could allow English law to apply if “in all the circumstances” it would be “substantially more appropriate” to apply the law of another country to which the tort was connected, ie England.
In a long second High Court decision delivered this April, Mrs Justice Foster held that German law applied to the substance of the dispute as well as to the matter of limitation. She held that the claimant’s claim against SAAFA was not time-barred by German law.
AKV argued that as the proper law of the dispute was German law it should therefore also apply to SAAFA’s part 20 / contribution claim against AKV. It maintained that, on the facts and given the expert evidence, the contribution claim would be time-barred under German law. SAAFA argued against that and submitted that the Civil Liability (Contribution) Act 1978 should be treated as having extra-territorial effect, meaning that the English Court was mandated to apply it, and its two year limitation period, even if German law applied under private international law rules. If this was the case then SAAFA could continue against AKV.
The matter reached the Court of Appeal which handed down judgment on Friday 17 July, more than 20 years after Harry Robert’s birth.
In another lengthy and detailed judgment covering 39 pages, the Court decided that the 1978 Act did have extra-territorial application and would therefore override German law, despite the paucity of recent authority on the point and despite the academic views pointing the other way. The reasoning on the point is involved, but in essence the Court took the view that this solution was consistent with the ordinary meaning of the 1978 Act, in particular the second part of section 1(6) which was said to envisage the Act applying even if the principal claim was subject to a foreign law: “it is immaterial whether any issue arising in any such action [ie the claim by the person who suffered damage] was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales.”
It therefore followed that SAAFA’s claim against AKV could proceed. Whether this recent Court of Appeal decision is the end of the issue and of the long procedural history in this case remains to be seen.