Today and tomorrow the Supreme Court will examine this question in the context of alleged clinical negligence in Germany dating back to 2000. The hearing is the final determination of the point and follows the Court of Appeal’s July 2020 decision in this case, which was the subject of a blog at the time (linked here).
The dispute before the Supreme Court is now only between the two defendants, the England-based charity (SSAFA) which employed the clinicians involved and the German hospital (AKV) where the events took place. The injured claimant’s underlying tort claim was subject to German applicable law. The current dispute, however, turns on which law properly applies to the contribution claim, brought in the English courts, between SAAFA and AKV.
The importance of this in the current action is that if German law runs through to the contribution claim then it will be time-barred. But if English law – ie the 1978 Act – applies then it will be in time and could still proceed. The essence of the question is whether the 1978 Act has “extra-territorial effect” and therefore operates, where the contribution claim is made in the English court, to override the otherwise applicable law (German, in this case). During the earlier phases of this case both the High Court and the Court of Appeal found that it did.
Standing back a little, although the UK leaving the EU may have significantly changed the rules on jurisdiction of the English courts (and those in other parts of the UK) in foreign accident claims, it has not altered the principles for establishing the relevant applicable law. The outcome of this case – which we’d hope to see before the summer break – will therefore be potentially relevant to contribution claims pursued in England between parties where their underlying liability to the claimant is subject to a foreign law. This remains an important issue, even though there may now be fewer foreign accident claims pursued in England than there were pre-exit because of the ending of jurisdiction under the Brussels I regulation and despite the decision in Brownlie (No 2).
[The claims subject to the decision would appear to be more likely to be those with unconnected defendants, given that pre-existing contractual arrangements – such as those between, say, a UK travel company and a local provider of skiing excursions – would ordinarily be expected to stipulate the law applying to claims between the companies.]