‘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.’
‘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 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 deciding whether, upon a true construction of the 1978 Act, the legislature intended that B… should have a statutory right of contribution against C, the Court is not concerned with any obligation to contribute which might exist between C and B independently of the Act; or with any relationship between C and B other than the relationship which gives rise to the statutory right - that is to say, that each is, or would have been, liable to A in respect of the same damage.’
‘Section 1(6), and other sections, contemplate that the Court may be required (by its own rules of private international law) to answer those questions by reference to some system of foreign law. If those questions are answered in the affirmative, then s.7(3) of the Act provides that the statutory right to contribution supersedes any right (other than an express contractual right) which might arise or exist otherwise than under the Act. It would be strange, therefore, if – before it came to construe the 1978 Act at all – the Court were required to answer a preliminary question which was unrelated to and inconsistent with the basis upon which the statutory right of contribution arises under English law. To ask whether a right of contribution arising out of any relationship between B and C other than their relationship as persons each of whom is liable to A in respect of the same damage ought to be determined by English domestic law would be to ignore the basis upon which the right arises under that law. To ask whether a right of contribution arising out of the relationship between B and C as persons who are each liable to A in respect of the same damage would be to ask the very question to which the 1978 Act provides the answer.’
‘In that case it might well be that a contribution claimant could rely on a right of contribution conferred by a foreign law; and that, on that basis, the English court would recognise a right of contribution arising under the law of the place with which the circumstances giving rise to the contribution claim have the most real connection…’
‘Nothing in this Part…authorises the application of the law of a country outside the forum as the applicable law for determining issues arising in any claim insofar as to do so…would conflict with principles of public policy…’
‘To ask whether a right of contribution arising out of the relationship between B and C as persons who are each liable to A in respect of the same damage would be to ask the very question to which the 1978 Act provides the answer.’