A personal injury action brought as a result of brain damage suffered at birth to a boy whose father was serving in the British army in Germany is throwing up a variety of issues of private international law.
In Roberts v SSAFA/Ministry of Defence proceedings were brought on behalf of the boy, Harry Roberts, against SSAFA (a charity supplying midwife services to British army personnel) and the Ministry of Defence (who indemnify SSAFA) contending that the British midwife was negligent in the birth. SSAFA/MOD denied liability and brought Part 20 proceedings against the German hospital which employed the doctors responsible for the birth, Allgemeines Krankenhaus Viersen Gmbh (“AKV”) for contribution. Dingemans J had previously rejected a contention under the Brussels Regulation recast that the Part 20 proceedings should be heard in Germany  PNLR 10. There is a further preliminary issue between the Claimant and SSAFA/MOD on proper law and limitation under the main claim due for hearing later this year.
AKV argued that the applicability of the Civil Liability (Contribution) Act 1978 was subject to private international law rules, and, as the proper law of the Part 20 proceedings was German law, so too the question whether SSFA/MOD could claim contribution from AKV was subject to German law. If correct, that would mean that the Part 20 proceedings were time barred. This is a question which has attracted considerable academic attention (the position is not necessarily the same where Rome II now applies). AKV argued that in accordance with Lord Sumption’s judgment in Cox v. Ergo Versicherung AG  AC 1379 private international law rules should determine whether the statute was applicable unless the statute expressly or implicitly provided that it had “extra-territorial” effect.
The only decision directly in point was Arab Monetary Fund v Hashim (No 9) (The Times 10 October 1994) where Chadwick J had held that the Act applied in all proceedings before the English courts, a decision that has faced academic criticism, but is consistent with dicta in The Benarty  1 WLR 1614 (Hobhouse J) The Kapetan Georgis  1 Lloyds Rep 352 (Hirst J) and The Baltic Flame  2 Lloyds Rep 203 (Court of Appeal).
Soole J held that on a proper reading of the Act, it was implicit that it applied to all proceedings before the English courts notwithstanding rules of private international law and so held. It followed that the Part 20 claim against AKV was not time-barred. He gave AKV leave to appeal.
The judgment is here.
Charles Hollander QC (instructed by the Government Legal Department) acted for SSAFA/MOD