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Abstract
The governing law of claims for contribution, where the applicable law of the underlying claim is a foreign law, has long posed a knotty problem in English private international law. The Supreme Court's decision in Roberts v Soldiers, Sailors, Airmen and Families Association considered this issue in the context of the common law choice of law rules. This article considers the decision in Roberts and claims for contribution falling within the scope of the Rome II Regulation, the Rome I Regulation as well as the Hague Trusts Convention. It is argued here that claims for contribution arising out of the same liability should be considered as “parasitic” on the underlying claim and should prima facie be governed by the applicable law of the underlying claim.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 [2022] UKSC 29; [2023] A.C. 597.
2 K Takahashi, Claims for Contribution and Reimbursement in an International Context (Oxford University Press, 2000), 7–18.
3 Rome II, Art 31 and 32.
4 Rome II, Art 1.
5 Rome I, Art 28 and 29.
6 Rome I, Art 1; Rome Convention, Art 1.
7 European Union Withdrawal Act 2018, s3; Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations SI 2019/834, as amended by Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations SI 2020/1574.
8 Recognition of Trusts Act 1987, s3(2); Recognition of Trusts Act 1987 (Commencement) Order 1987/1177, Art 2.
9 Roberts v SSAFA [2019] EWHC 1104 (QB); [2020] QB 310 (“Roberts (HC)”), [8]; see also Roberts (SC), [33].
10 Raiffesen Zentralbank v Five Star Trading LLC [2001] EWCA Civ 68; [2001] QB 825, [26]–[28] (Mance LJ).
11 Roberts (HC), [3]–[5].
12 Ibid, [5].
13 [2014] UKSC 22; [2014] AC 1379.
14 Roberts (SC), [36]; Briggs, Private International Law in English Courts (2nd edn, 2023), 248.
15 Roberts (HC), [93]–[96].
16 Roberts v SSAFA [2020] EWCA Civ 926; [2021] QB 859 (“Roberts (CA)”), [54]–[61]; [88]–[95].
17 Ibid, [67]–[68] (Irwin LJ); [71]–[74] (Phillips LJ); [88]–[91] (Richards LJ).
18 Ibid, [68].
19 Ibid, [84].
20 Roberts (SC), [38].
21 Ibid, [39]–[44].
22 Ibid, [45].
23 Ibid, [46]–[48].
24 Ibid, [49]–[55], [83].
25 Ibid, [84].
26 Roberts (SC), [33], [83].
27 Ibid, [5]; Roberts (HC), [5]–[6].
28 Roberts (SC), [33].
29 Roberts (SC), [33].
30 Roberts (SC), [41], [44], and [80].
31 See the discussion at Roberts (SC), [26]–[33] and in particular the question at [26]: “In a situation where B and C are both liable to A in respect of the same damage, and where the liability of each of them to A is governed by German law, which law governs issues relating to contribution between B and C?”
32 Roberts (SC), [32]. See the discussion at Roberts (SC), [29]–[33].
33 Roberts (SC), [33], [43].
34 A national rule implemented pursuant to Directive 2009/103 of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability: Art 28.
35 That language is taken from the CJEU's decision in Cases C-369/96 and C-376/96 Arblade [1999] ECR I-8453 which defined overriding mandatory provisions as “national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require therewith by all persons present on the national territory of that Member State and all legal relationships within that State”.
36 Case C-149/18 da Silva Martins v Dekra Claims Services Portugal SA, [31].
37 [2019] EWHC 2389 (Comm); [2020] 2 All ER (Comm) 68.
38 A rule of English law which provides, in broad summary, that a shareholder of a company cannot recover for the diminution in value of shares of a company or reduction in the distributions that the company may make to the shareholder where the company has been the victim of a wrong. See Sevilleja v Marex Financial Ltd [2020] UKSC 3; [2020] 3 All ER 527.
39 KMG v Chen [2019] EWHC 2389 (Comm); [2020] 2 All ER (Comm) 68, [50].
40 Cox v Ergo Versicherung AG [2014] UKSC 22; [2014] AC 1379, [27]–[29].
41 See, eg Arab Monetary Fund v Hashim (No 9), The Times, 11 October 1994; Petroleo Brasiliero v Mellitus Shipping Inc [2001] EWCA Civ 418; [2001] 2 Lloyd's Rep 203.
42 Lord Collins and Jonathan Harris (gen. eds), Dicey, Morris & Collins on the Conflict of Laws (16th edn, 2022) (“Dicey”), §§36–108 to 36–109. Note, however, that at §34–075, the authors doubt whether the 1978 Act could be of such a character as to fall within the scope of Article 16; C Riegles, “Choice of Law in Relation to Contribution Claims” (2022) 138 LQR, 26–31, see 30–31.
43 Roberts (CA), [84].
44 Roberts (HC), [102].
45 Dicey, §35-021.
46 Roberts (HC), [8]; Roberts (SC), [33].
47 Joined Cases C-359/14 and C-475/14 ERGO Insurance SE v If P&C Insurance AS [2016] RTR 16, [52]–[53]. See also the Explanatory Memorandum to Rome II in which the European Commission explained that the phrase “extent of liability” used in Article 15(a) refers to limitations laid down by the applicable law on liability, “including the maximum extent of that liability and the contribution to be made by each of the persons liable for the damage which is to be compensated for” and that “The expression also includes division of liability between joint perpetrators”: Commission of the European Communities, “Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (‘Rome II’)”, 2003/0168 (COD), published on 22 July 2003, p 23.
48 Hamilton-Smith v CMS Cameron Mckenna LLP [2016] EWHC 1115 (Ch), [65] per Nugee J; Roberts (HC), [8].
49 Commission of the European Communities, “Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-contractual Obligations (‘Rome II’)”, 2003/0168 (COD), published on 22 July 2003, 26.
50 Goff and Jones, The Law on Unjust Enrichment (10th edn, 2022), §20–79.
51 Ibid.
52 Roberts (SC), [33].
53 Cf. City Index Ltd v Gawler [2007] EWCA Civ 1382; [2008] Ch 313, [31]–[32] where a claim for knowing receipt was held to be liability to “compensate” the claimant such that a claim for contribution could be said to be “in respect of the same damage”.
54 A point underlined in H Sanderson, “The Divine Comity: SSAFA v Allgemeines Krankenhaus Viersen” [2023] LMCLQ 188, 192–93.
55 Practice Direction 6B, paragraph 3.1(4) provides a gateway for “A claim [which] is an additional claim under Part 20 and the person to be served is a necessary or proper party to the claim or additional claim.”
56 [2021] EWHC 1429 (Comm); [2022] 1 All ER 717 (“Samsung (HC)”).
57 The decision was appealed by Samsung in the Court of Appeal but not in relation to this conclusion: [2022] EWCA Civ 423; [2023] 1 All ER 227, [20].
58 Samsung (HC), [5]–[13].
59 Roberts (SC), [33].
60 Samsung (HC), [16].
61 Samsung (HC), [15].
62 The legislation which enacted the Rome Convention in the United Kingdom. See also: Barclays Bank Plc v Glasgow City Council [1993] QB 429, 434.
63 Dicey, §36–109.
64 Case C-149/18 da Silva Martins v Dekra Claims Services Portugal SA, [28].
65 Ibid.
66 Case C-149/18 da Silva Martins v Dekra Claims Services Portugal SA, [28].
67 Horn v Knott [2023] EWHC 1351 (Comm), [12] citing Hampton v Minns [2002] 1 WLR 1.
68 By Article 3 of the Hague Trusts Convention, that instrument only applies to trusts created voluntarily and evidenced in writing.
69 Republic of Angola v Perfectbit Ltd [2018] EWHC 965 (Comm), [204] per Bryan J; Dicey, §34–097.
70 Hague Trusts Convention, Art 22.
71 Recognition of Trusts Act 1987, s3(2); Recognition of Trusts Act 1987 (Commencement) Order 1987/1177, Art 2.
72 Dicey, §36–109.
73 Chellaram v Chellaram (No 1) [1985] Ch 409, 432 per Scott J; see also Chellaram v Chellaram (No 2) [2002] EWHC 632 (Ch); [2002] 3 All ER 17, [142] per Lawrence Collins J.