“a. the defendant’sclaims for contribution against the part 20 defendant will not be time-barred if the question whether the defendants are entitled to contribution is covered by English law by reason of the applicability of theCivil Liability (Contribution) Act 1978 …, but will otherwise be time-barred because German law applies; b. the relevant question for the purposes of the trial of the preliminary issue is whether or not the 1978 Act has mandatory or overriding effect and applies automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. If not, German law will apply to the Defendants’ claims for contribution against the Part 20 Defendant and they will be time-barred”
“A converse question is when the English courts will enforce a right of contribution arising under a foreign system of law. It is clear that both these questions – the scope of the English Act and the effect to be given to foreign systems – should be answered on the same principle; but on what that principle is there is little authority. It is submitted that the matter in issue is not one of procedure, governed by the lex fori, but is a substantive-law claim arising e lege (whether it is called a quasi-contractual or a statutory claim makes no difference). There appear to be two possible ways in which the choice of law may be made. Since the right of contribution arises out of a tort, it may be held to be governed by the same law as the tort, namely the lex loci delicti. An analogy for his might be found in the Law Reform (Frustrated Contracts) Act, 1943, s.1(1), which makes the claim for restitution consequent upon a frustrated contract dependent on the law governing the contract. Alternatively, since the right of contribution rests upon the notion of unjust enrichment, it may be held to be governed by the law of the place of enrichment. This raises the question where is the place of enrichment. The defendant’s enrichment occurs because the plaintiff, by satisfying the judgment debt or tortious liability, has satisfied a liability that ought sue D2 for contribution, notwithstanding that it may be just as difficult for D2 to resist the claim for contribution after the lapse of this time as if he were being directly sued for damages by P. It is submitted that while D1 should have an extra period of time after satisfying P’s claim in which to sue D2, he does not need as long a period as six years. It might be provided by legislation that D1 should be able to enforce his right to contribution within either of two periods, whichever is the greater: (1) the same period as that in which the injured plaintiff can enforce his claim against the contributor, (2) the period of say one or two years after the liability of the claimant is ascertained or the injured plaintiff’s damages paid, with a discretion in the court to extend the period in meritorious cases (as where it has been practically impossible to serve the defendant). Where a claim for contribution is made under the heading of damages in accordance with the argument in §§32-3, time commences to run when the cause of action accrues. This means, where the action is for negligence, that it accrues on the first occurrence of damage. Suppose that P is a passenger in a car driven by D2, whom he has exempted from liability for negligence: there is a collision between this car and a lorry driven by D1, owing to the negligence of both drivers, and P and D1 are injured. P sues D1, and D1 sues D2 for damages for his own injuries and damages for the damages that he has had to pay P. Time runs from the accident, for that was when D1 suffered the first damage. But now suppose that D1 was not injured, and that his only damage was his liability to P. Did his damage occur when this liability arose (i.e. when P was first damaged), or does it occur only when he pays damages to P? The question has not been decided, but it is suggested that the simpler alternative and on the whole the better one is the first. This would mean that when contribution is claimed by way of damages, time runs from the same moment as in the injured plaintiff’s action. The question whether a tortfeasor who has settled a statutebarred claim can sue for contribution was discussed in §31 (e) (ii). The period of limitation for claims to contribution under s.3 of the Maritime Conventions Act, that is to say in respect of an overpaid proportion of any damages for loss of life or personal injuries (§32), is one year (see s.8 of that Act). The period of limitation for claims to contribution by way of damages for tort under the decision in part to have been borne by the defendant. It may therefore be thought that the place of enrichment is the country where the tortious liability arose – which puts us back to the lex loci delicti. Alternatively, it may be thought that the place of enrichment is the place where the present plaintiff made the payment to the victim of the tort. This place, however, is perfectly fortuitous so far as the defendant is concerned, for the payment was not made to him and he was no party to it. On the whole, therefore, the argument seems to be in favour of the lex loci delicti. This means that the Tortfeasors Act should apply to torts committed in England, while for torts committed in other jurisdictions the question of contribution should be regulated by the law of the place of commission of the tort.”
“….a modest Bill, designed to effect a degree of law reform in a very technical field of the law. It is drafted so as to give effect, with certain modifications, to the report and recommendations of the law commission… The major difference [from the Law Commission Report] is that the Bill as drafted will apply to Northern Ireland…”
“73. …One particular problem with which we were concerned was this. If P has recovered damages from D1, should D1’s right to contribution from D2 be affected by the fact that P could no longer sue D2 because of the expiry of the relevant limitation period? It was the rule under the Law Reform (Married Women and Tortfeasors) act 1935 that D1 could recover in the situation just given and D2 could not shelter behind theLimitation Act 1939 . However, if P had in fact sued D2 and the court had held that the claim was statute-barred, D1 could recover no contribution. We recommended that the law should be altered so that when D1 sued D2 for contribution, D2’s liability should be the same whether he had been sued by P and won on a ‘limitation’ point or had never been sued at all. 74. This recommendation was substantially implemented bysection 1(3) of the Civil Liability (Contribution) Act 1978 . The effect of this subsection is that D1 can recover contribution from D2 even if D2 has defeated a claim by P on a ‘limitation’ point. However, D2 can resist a contribution claim if the expiry of a period of limitation or prescription has the effect of extinguishing P’s right of action against D2, rather than just barring his remedy. The effect of theLimitation Act 1939 is usually to bar the remedy and not extinguish the right, but such extinction of the right of action does occur under sections 3 and 16 of the 1939 Act and as such is also the effect, as we have seen, of many foreign statutes of limitation. 75. Foreign limitation provisions may be of significance in the context of this working paper not only because our provisional recommendations could lead to their being applied by our courts much more frequently but also because of the implications of our recommendations on the law relating to foreign judgments. It is therefore necessary to examine together the effects of our recommendations on both the law of contribution and of recognition of foreign judgments. Accordingly we now consider the extent to which theCivil Liability (Contribution) Act 1978 applies to contribution claims involving foreign elements. 76. First, it should be borne in mind that the 1978 Act will only apply to those claims for contribution involving rules of private international law where the law governing the contribution claim (as opposed to P’s right of action) is English law. There is no direct English authority on the law to govern a contribution claim but the better view would seem to be that it is a matter to be governed by the proper law of the obligation. 77. If the contribution claim is governed by the 1978 Act, liability under that Act to make contribution requires the liability of D1 and D2 to be such that it has been, or could be, established by an action in England and Wales, taking into account rules of private international law. If, therefore, D1 alleges that D2 is liable to P for breach of contract under French law, though not under English law, D2 will be regarded as liable if the English courts held or would have held French law to be the proper law of the contract.”
“Act to provide for any law relating to the limitation of actions to be treated, for the purposes of cases in which effect is given to foreign law or to determinations by foreign courts, as a matter of substance rather than as a matter of procedure.”
“Section 1(6) of the Act of 1978 is concerned with providing a definition of, or guidance about, what liabilities may be taken into account for the purposes of section 1 of the Act. I consider that the subsection is concerned with the character of the liability and not with any merely procedural considerations as to how it might be enforced. As it was put (admittedly obiter) by Sir John Donaldson M.R. in Logan v. Uttlesford District Council (unreported),14 June 1984 ; Court of Appeal (Civil Division) Transcript No. 263 of 1984: “Subsection (6) merely provides that the test of liability is to be applied by reference to such liability as could be established before a court in England and Wales, irrespective of what substantive law that court would apply.”
“Contribution and Indemnity There does not appear to be any English authority on the question what law governs the right of one tortfeasor to claim contribution or indemnity from another. If the right to contribution is statutory, as it is in English domestic law, it is submitted that an English court would characterise it as quasicontractual and not as delictual and would apply the proper law of the obligation in accordance with Rule 201 and not a combination of the lex fori and the lex loci in accordance with Rule 203. For if A is injured by the joint negligence of B and C, and recovers judgment against B, B and C have each committed a tort against A but C has not committed a tort against B. Hence B’s right of contribution from C cannot be delictual. It must surely be either quasi-contractual or sui generis. In such a case the proper law of the obligation will prima facie be the lex loci delicti unless perhaps the joint tortfeasors are both resident in another country and there is some special relationship between them, e.g. that of employer and employee or bailor and bailee, which is centred in that country. If, however, one tortfeasor can claim an indemnity or contribution from another by virtue of a contract express or implied, his right to do so would be determined by the law applicable to the contract. That law will determine, e.g. the scope and effect of a warranty given by an author to his publisher that his work contains no libellous material, or of an implied undertaking given by an employee to his employer to use reasonable care and skill.”
“The view expressed in para 76 of Law Commission Working Paper No 75 was not reflected in the subsequent Law Commission Report (Law Com. No 114). The relationship between contribution and limitation is discussed, briefly, at paras 4.72 and 4.73 of the Report. The Law Commission accepted that amendment of the 1978 Act was neither necessary or desirable; and made no proposal relating specifically to the law of contribution between joint wrongdoers. The view expressed in Working Paper No 75 was, however, carried forward into a subsequent working paper on a different topic. In or about 1984 the Law Commission published Working Paper No 87 on Private International Law: Choice of Law in Tort and Delict. Paragraph 2.83 contains this sentence: “2.83 The Civil Liability (Contribution) Act contains no general choice of law rules and may be taken not to apply directly to all claims for contribution arising in a court in England and Wales or in Northern Ireland, but only to such of those claims as are governed by British or Northern Ireland law respectively.”
“The premise which is, I think, implicit in Mr Ross-Munro’s proposition – and, perhaps, also in the Law Commission Working Papers – is that the 1978 Act contains rules which are only applicable as part of the English domestic law; and does not itself contain private international law rules for the purpose of identifying the circumstances in which the English Court is to apply the Act to cases involving foreign elements. In my view this is a false premise. The correct approach is not to ask whether, under some rule of English private international law which is to be found or ascertained independently of and without regard to the provisions of the Act itself, the contribution claim which has been made in the proceedings which are before the Court is to be determined by reference to the Act: the correct approach is to ask whether under the rules of law applicable in an English court (which include the provisions of the Act itself) the contribution claim ought to succeed. In a case involving foreign elements that approach requires the Court to decide whether, upon a true construction of the Act, the legislature intended to confer on the claimant (B) in the contribution proceedings which are before it a right of contribution against the respondent to those proceedings (C) which was to be recognised and enforced in England. It is, I think, important to keep in mind that the right of contribution created and conferred by the 1978 Act is not based upon the breach of any existing obligation owed by C to B. In his judgment in Ronex Properties Ltd -v- John Laing Construction[1983] 1 QB 398 ,[1982] 3 All ER 961 , Donaldson LJ explained the position – in the context of a contribution claim unders6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935 – in these terms, (ibid, at page 407 A-C): “It [the statutory right of contribution created by the 1935 Act] is based upon breaches of tortious duties owed by both parties to the contribution suit, whether jointly or severally, to a third party and stranger to that suit, the plaintiff in the main action. As it was put in geometrical terms in argument, the rights of those concerned are triangular, the sides A B and A C representing the tortious rights and causes of action, and the base B C representing rights which are sui generis, not being tortious but arising out of tortious rights: see dicta of McNair J. inHarvey v. R. G. O'Dell Ltd. [1958] 2 Q.B. 78, 107.”
“…had thought it necessary to address the preliminary question of what law to govern the charterers claim against the shippers it is difficult to see how that question could have been answered in favour of English law. Like Hobhouse J… Hirst J did not address that question. He, also, dealt with the matter on the basis that the solution to the questions before him was to be found in the 1978 Act itself.”
“The 1935 Act contained no indication whether "liable" in s 6 (1) (c) was restricted to liability under English domestic law or extended to liability under some foreign system of law. Following the enactment of the 1978 Act it is, of course, not only "possible ... literally speaking" for parties to be "liable", in the context of the contribution legislation, in respect of the same damage under a foreign system or systems of law; the Act itself recognises that foreign law may determine or affect liability see ss 1 (3), 1 (6) and 2 (3) (c). As Hirst J pointed out in The Kapetan Georgis (supra,(1988) 1 Lloyd's Rep 352 at page 359) the provision in s 1 (6) goes beyond anything contained in the 1935 Act. It does not follow that the 1978 Act "is capable of being applied indiscriminately" whenever two parties are liable for the same damage under foreign law. The criteria, under s 1 (6) of the Act, is that the liability has been or could be established in an action brought in the English court by the person who has suffered the damage. Although it is immaterial that, in deciding whether or not liability is established, the Court may (in accordance with its own rules of private international law) apply foreign law, the "liability" is a liability which could be established in an English court. So, for example, liability under foreign law alone in respect of a tortious act committed abroad would not be sufficient; liability under English law also would need to be established in accordance with the test of double actionability recognised in Boys -v- Chaplin[1971] AC 356 ,[1969] 2 All ER 1085 , But if that test is satisfied, then it is immaterial whether a right of contribution between the tortfeasors exists under any foreign law. That right is conferred by s1(1) of the 1978 Act and the English court must give effect to it. It follows that, if the English court assumed jurisdiction in the litigation in which Professor Glanville Williams' Ruritanians were involved and - after applying the relevant provisions of English and Ruritanian law in accordance with the principles explained in Boys -v- Chaplin (supra,[1971] AC 356 ) - reached the conclusion that two (say, B and C) were liable to the third (A) in respect of the same damage, it would, in my view, not only be conceivable but correct in law for the Court to apportion the damages between B and C inter se. It would be remarkable if the Court could not do so. It would be a surprising defect in the law if the English court, having decided in an action to which A B and C were party that B and C were each liable to A in respect of the same damage - suffered in, say, a collision between motor vehicles in Ruritania in which the three were involved - and having assessed that damage, were precluded by the absence of any law of contribution in Ruritania from deciding also how its judgment for that sum against each of B and C should be apportioned inter se. I am satisfied that, following the enactment of the 1978 Act, that defect is not a feature of English law. Properly understood the 1978 Act gives does not give rise to the consequence which Professor Glanville Williams regarded as "inconceivable". B would not obtain the benefit of a statutory right of contribution "merely by coming to England and suing here". B would need to establish that both he and C were, or would have been, liable to A on the basis of the law applicable in an English court. He would also, of course, have to establish some basis upon which the English court could assume jurisdiction over C The position was explained by Hobhouse J in The Benarty (supra,[1988] 1 WLR 1614 ) at page 1622 C-F: "If the respondent to the contribution claim is (as here) a foreigner, then before such foreigner can be made the subject of a contribution claim the claimant must establish some procedural right recognisable under R.S.C. 011, or other relevant provision, which entitles him, the claimant, to proceed against the respondent in this country. If he cannot establish such a procedural entitlement no question of liability under the 1978 Act will arise: if he can then there is no need for any further enquiry and the provisions of the 1978 Act should be applied.”” "If the respondent to the contribution claim is (as here) a foreigner, then before such foreigner can be made the subject of a contribution claim the claimant must establish some procedural right recognisable under R.S.C. 011, or other relevant provision, which entitles him, the claimant, to proceed against the respondent in this country. If he cannot establish such a procedural entitlement no question of liability under the 1978 Act will arise: if he can then there is no need for any further enquiry and the provisions of the 1978 Act should be applied.””
“Prima facie, therefore, in any proceedings in an English court by a person (B) to recover contribution from another (C) under the 1978 Act there are five questions which will or may arise: (i) is B a person liable in respect of any damage suffered by another person (A); (ii) is C a person liable in respect of the same damage; (iii) is the amount which has or might have been awarded against C in respect of that damage in an action brought by A in an English court subject to any limitation or reduction imposed by or under any statute (including any foreign law which would have been applicable in such an action); (iv) is there any express contractual provision between B and C regulating or excluding contribution; and (v) what amount is it just and equitable for C to contribute having regard to the extent of his responsibility for the damage in question?”
“… the law applicable to the obligation which the plaintiff claims to have discharged or had assigned to him should determine his right to a contribution”
“The statutory right to contribution only arises in respect of “any damage” suffered. The statutory right does not cover the situation where persons are jointly liable for the same debt. If liability can be established in an English court against two or more persons in respect of the same damage, the Act applies regardless of the rules of private international law. Application of the lex fori simplifies the position but seems unprincipled. If by the law(s) of the obligations no contribution action would be possible, why should the lex fori determine the issue in a different way? Does the Act apply to foreign judgments? If such liability could not be established in an action brought in an English court, it should not. Does recognition of a foreign judgment suffice? The position is unclear.”
“There is an immediate attraction to the result reached by Chadwick J, If the court has jurisdiction over R (the more so when the claim for contribution is brought in the very proceedings brought by P against D), the convenience of settling all issues once and for all is plain. But it does not follow that, just because the court has and will exercisejurisdiction to order contribution, it should apply its domestic law to the issue without regard to choice of law. True, the power given to the court to award whatever is just and equitable also looks unobjectionable; but is that sufficient? Maybe not. A close analogy exists in the power to assess contributory negligence between a plaintiff and defendant under theLaw Reform (Contributory Negligence) Act 1945 . Suppose that a plaintiff has been injured in circumstances in which an English court, left to its own devices, would reduce damages on account of contributory negligence. But suppose that the tort took place in Ruritania. And suppose that Ruritanian law on contributory negligence was different: a different fractional apportionment, or a last opportunity rule to bar recovery altogether. Would the 1945 Act apply to the exclusion of the Ruritanian rule? Common law authority was thin, but a modem consensus would accept that the issue was one of substance, and should on that account be governed by the law governing the substance of the claim. Now that this is declared by statuteto be Ruritanian law, would an English court still apply its own provisions on contributory negligence? Almost certainly not: it would apply those of the lex loci delicti. So why is contribution between wrongdoers different? The wording of the two statutes is strikingly similar, and neither gives any indication that it is to apply notwithstanding, or is not to apply in the face of, international elements in the claim. One arguable distinction may be that there is a clear choice of law rule for tort (hence for contributory negligence as an issue) but that, as clarity is rather lacking for quasi-contractual or restitutionary claims, the case for applying the 1978 Act faut de mieux is stronger. But is it principled?”
“Two things follow from this procedural murk. First, a court should be willing to accept jurisdiction over contribution claims when it has jurisdiction over the claim of P against D: one single determination binding on all will be a solution much preferable to the anarchy of separated parts of a single story being litigated in separate courts. This insight tipped the balance and led the Privy Council to issue an injunction in S.N.I. Aérospatiale v. Lee Kui Jakand caused Phillips, J., to accept jurisdiction over the contribution claim in Kinnear v. Falconfilms NV. But second, this pragmatic encouragement to take a wider-than-usual view of jurisdiction should lead to a greater-than-usual sensitivity to issues of choice of law: this is, after all, the very foundation of private international law. The blanket application of English law to the substance of the contribution claim is inappropriate, at least in cases where the claim, when seen in simple isolation, would not otherwise have belonged within the jurisdiction of the English court or to English law. In other words, the relationship created or arising between D and R should be treated as self-contained, and the law appropriate to it selected to govern the claim. No doubt it is then true to say (i) that this should be that with which the claim for contribution has its closest and most real connectionand (ii) that such claims should be accommodated within the emerging choice of law rule for restitutionary claims. As far as this group is concerned, much careful and detailed work has been recently done by others. But for present purposes there is much to recommend the view that a contribution claim should be governed by the law with which it has its closest and most real connection, and that in the absence of clear and compelling words in the 1978 Act, the operation of the Act should be limited to cases where the law with the closest and most real connection to the contribution claim is English law.”
“This understanding [as decided in Hashim] of the effect of s1(6) has the merit of simplicity, but it may be questioned whether the wording of the section clearly indicates that Parliament intended the 1978 Act to apply without regard to the choice of law rules which would otherwise come into play.”
“35. …What the court did not say was that the absence of a right to contribution in Illinois was itself a reason why joinder in the English proceedings should not be permitted. 36. Nor in my view is it. The 1978 Act is strictly territorial in scope. However, it is unequivocal in its application to all proceedings brought in England, and there is nothing in the Act, or in particular in s.1(6), to limit the right of contribution to liabilities incurred in England and Wales: see the observations of Hirst J in `The KapetanGeorgis' at p.357-9. Contribution proceedings are in turn generally proceedings appropriate to be tried in the course of proceedings already afoot. The draftsman of the 1978 Act and the Supreme Court Rules Committee may be taken to have had in mind that the combined effect of the 1978 Act and O.11 r1(1)(c) would be to permit joinder of a foreign party who would not be liable if sued directly in his own country. Similar issues arise in cases where the limitation period in the foreign country may be different from that in England. Depending on the overall circumstances, a shorter local time bar may on occasions be an argument for confirming the need to serve out of the jurisdiction. … 38. In my opinion, in relation to a question of contribution, the court should similarly be guided by the interests of the parties and considerations of practical justice. This is a case where plainly Fortum are acting reasonably in seeking to issue contribution proceedings against Saudi Aramco in proceedings in which Fortum have themselves been sued and require to protect their position. So far as practical justice is concerned, while Saudi Aramco would be under no liability if sued in Saudi Arabia, it will only be held liable to contribute in this country if it is in truth directly liable to Mellitus pursuant to a claim for damage already asserted and required to be determined in England under English law (albeit in arbitration proceedings). In such circumstances, as it seems to me, the demands of practical justice plainly favour joinder of Saudi Aramco.”
“The FAA reflects public policy in the obvious sense that it expresses the will of Parliament. As I have said, however,FAAdoes not expressly or impliedly provide either that a claim arising out of an accident abroad can only ever be brought before an English court under its provisions, or that the English courts must apply its provisions in a case like the present where the head of loss is different from loss of dependency in theFAAsense. IfFAAdoes not expressly or impliedly so provide, there is no scope for a further argument based on public policy. A good contrast with the present case issection 1(6) of the Civil Liability (Contribution) Act 1978 , which expressly provides as follows: “References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action 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.”” “References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action 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.””
“34. …Neither the terms nor the purpose of the Act depend for their effect on its having extra-territorial effect. The only other basis for imputing to Parliament an intention to apply theFatal Accidents Actinternationally irrespective of ordinary rules of private international law, is that the Act, and in particular its damages rules, represent a “mandatory rule”
“81. Whilst the preliminary issue is confined to the question of whether the 1978 Act has mandatory/overriding effect, I think it necessary to start with the approach of the common law to any dispute on choice of law in a claim with a foreign element. As authority cited in Cox makes clear, the first question in such a dispute is the characterisation (or classification) of the claim or issue in question. Such classification should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system; and should be taken in a broad internationalist spirit in accordance with the principles of conflict of laws of the forum : Cox per Lord Mance at [46] citing Macmillan Inc v. Bishopsgate Investment Trust plc (No.3)[1996] 1 WLR 387 per Auld LJ at 407C; and Raiffeisen Zentralbank Osterreich AG v. Five Star Trading LLC[2001] QB 825 per Mance LJ at [25-27]. 82. Following classification, the second and third questions require selection of the rule of conflict of laws which lays down a connecting factor for that claim or issue; and then identification of the system of law which is tied by that connecting factor to that claim or issue: Raiffeisen at [26]. 83. Having determined the choice of law in accordance with these rules, there may be a further question as to whether that result is displaced by a mandatory rule of the forum. However, as Lord Sumption observed ‘This is not a choice of law principle at all, but turns on the overriding rules of policy of the forum’ [28]. That this is so is inherent in the very concept of a ‘mandatory rule’ which applies ‘irrespective of ordinary rules of private international law’ [34]; and thus in the terms of the present preliminary issue. 84. For this reason I do not accept that this preliminary issue can be approached on the basis that it involves no question of extraterritoriality and is to be answered on the simple basis that the 1978 Act applies where any claim for contribution is sought from a party who has been brought before the Court or otherwise submitted to the jurisdiction. To approach the question in that way would indeed involve circularity – and be at odds with the terms of the preliminary issue. 85. Thus I do not accept Mr Hollander’s submission that Lord Sumption’s first question ‘what is the proper law of the relevant liability’ [29] can be answered as (i) the ‘relevant liability’ to contribute is provided by the 1978 Act; therefore (ii) the proper law is English law; therefore (iii) no question of extraterritoriality arises. Identification of the proper law of the relevant liability, i.e. the claim for contribution, starts with classification and the two further stages. The effect of the parties’ agreement is that this produces the answer ‘German law’. The next stage is to consider whether that choice of law, reached in accordance with the ordinary principles of private international law, has been displaced by the 1978 Act.”
“89. Thus whilst Chadwick J did not approach the question by sequential consideration of (i) classification and (ii) statutory construction, the effect of his decision was that, properly construed, the 1978 Act overrode any choice of law rule which would otherwise apply. This is particularly apparent from his closing observations (p.13) when he considered the position which would have arisen if the 1978 Act did not apply. Furthermore his focus on construction anticipates Lord Sumption's statement that 'Whether an English statute applies extraterritorially depends on its construction [27]. 90. All that said, I accept that the question of construction has to be reviewed in the light of the principles identified inCox. 91. I do not accept Mr Hollander's submission that the 1978 Act expressly provides that it has overriding effect. His argument stretches the language of Lord Sumption [29] and in substance depends on an implication to be derived from the express statutory provisions concerning choice of law. The question is whether a statutory intention of overriding effect can be implied; and in particular having regard to the two bases identified by Lord Sumption at [29]. 92. In my judgment it is implicit from the provisions of the 1978 Act that the statute does have overriding effect; and that the presumption to the contrary is accordingly rebutted. 93. I consider that the express references in the 1978 Act to private international law (ss.1(6),2(3)(c)) support this implication. Parliament having chosen to identify specific circumstances in which choice of law rules are to apply (and the extent of that application) in a claim under the statute, the natural implication is that the availability of this statutory cause of action was not itself to be subject to choice of law rules. 94. I do not accept that the FAA or the 1945 Act provide any useful comparison, when these are distinguished by the absence from their provisions of any reference to private international law. The same applies to the suggested comparison with the general domestic law of tort. Nor do I see any significance in the fact that all these statutes made significant changes to the common law. 95. Although this was not cited in argument, I note that whenCoxwas before the Court of Appeal ([2012] EWCA Civ 854 ), Leading Counsel for the Claimant supported his contention that theFAAhad overriding effect with the argument that this was consistent with the approach to the 1978 Act in Hashim: see at [20]. In rejecting the argument in respect of the FAA, Etherton LJ observed thats.1(6)of the 1978 Act was 'A good contrast with the present case…' [60]. 96. On its proper construction,s.7(3)is consistent with this conclusion. In the context of the express references ins.1(6)ands.2(3)(c)to private international law, I consider that the natural meaning of 'supersedes any right' is that 'any right' includes any right of contribution which would otherwise arise under foreign law: see also Hashim at pp.7 and 13. I do not accept that the exception ins.7(3)for contractual provision which excludes a contribution claim is a pointer the other way. 97. A further pointer is provided by the combined effect ofss.1(3)and1(6). Where the statute makes express provision (in a case where the Act applies) to disregard foreign law of limitation which bars the remedy, it would be inherently anomalous for it to provide otherwise for the purpose of deciding whether the Act does apply. The implication must be that this was not the statutory intention. 98. Whilst the position could have been put beyond doubt by express provision of the types seen in theUnfair Contract Terms Act 1977and theThirdParties (Rights against Insurers) Act 2010, I am not persuaded that its absence in the 1978 Act provides any support to the case against implication.”
“102. I also conclude that the implication of overriding effect is justified on each of the two bases identified by Lord Sumption inCoxat [29]. The purpose of the 1978 Act cannot effectually be achieved unless it has extraterritorial effect; and the legislation gives effect to a policy so significant in the law of the forum that Parliament must be assumed to have intended that policy to apply to anyone resorting to an English court regardless of the law that would otherwise apply. In each case, this is most obvious where the foreign law provides no right of contribution; but it applies equally where a foreign limitation provision would otherwise defeat the claim. 103. In Hashim Chadwick J observed that it would be a serious defect in the law if contribution could not be obtained between the tortfeasors who have been or could be found liable in the courts of England and Wales. I agree. 104. As to the other English decisions, the present issue was not argued. In each case the question was jurisdictional, in the sense of whether the proposed contributing party should be brought before the Court. It is not fruitful to consider the particular facts and circumstances of those cases. However, the judicial observations therein display a persistent theme that the statutory intention is to provide a right of contribution which is available, according to its terms, in respect of all claims before the courts of England and Wales. These observations are consistent with the proposition that the 1978 Act has overriding effect; and provide comfort to that conclusion. 105. For all these reasons I am not persuaded that Hashim was wrongly decided, whether considered before or after the decision inCox; and conclude that the answer to the preliminary issue is that the 1978 Act does have mandatory/overriding effect.” mandatory/overriding effect.”
“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the Minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of the majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such and such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[1975] AC 591 , 613 “we often say that we are looking for the intention of Parliament but that is not quite accurate. We are seeking the meaning of the words which Parliament used.”
“…in most if not all cases, it will arise only if (i) the terms of the legislation cannot effectually be achieved unless it has extra-territorial effect; or (ii) the legislation gives effect to a policy so significant in the law of the forum that Parliament must be assumed to have intended that policy to apply to anyone resorting to an English court regardless of the law that would otherwise apply.”
“It would be a surprising defect in the law if the English court, having decided in an action to which A, B and C were party that B and C were each liable to A in respect of the same damage – suffered in, say, a collision between motor vehicles in Ruritania in which the three were involved – and having assessed that damage, were precluded by the absence of any law of contribution in Ruritania from deciding also how its judgment for that sum against each of B and C should be apportioned inter se.”
“There is an immediate attraction to the result reached by Chadwick J. If the court has jurisdiction over [tortfeasor two] (the more so when the claim for contribution is brought in the very proceedings brought by [the claimant] against [tortfeasor one]), the convenience of settling all issues once and for all is plain. But it does not follow that, just because the court has and will exercise jurisdiction to order contribution, it should apply its domestic law to the issue without regard to choice of law.”
“(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). (6) References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action 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.”