In Roberts (a minor) v (1) SSAFA; (2) MOD; (3) AKV (Part 20)  EWHC 994 (QB) Mrs Justice Foster gave judgment on preliminary issues arising out of a claim for an English midwife’s purported negligence during the birth of Harry Roberts in Germany. The preliminary issues were: (1) Whether German law applied; (2) If so, whether the Claim was time-barred under German Law; (3) If it was time-barred, whether the limitation period should be disapplied. The judge held German law applied but the claim was not time-barred under it. However, the judge went on to hold, obiter, that if the claim were time-barred then the German limitation period should be disapplied on account of the undue hardship it would cause.
In this article, Cressida Mawdesley-Thomas examines how the applicable law is determined under The Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”); as well as when a foreign limitation period will be disapplied pursuant to the Foreign Limitation Periods Act 1984 (“FLPA”).
Mrs Roberts gave birth Harry in Germany in 2000 at the AKV hospital where the allegedly negligent midwife worked. The midwife was employed by the Soldiers and Sailors, Airmen and Families Association (“SSAFA”). Harry was born in Germany as his father was serving in the UK armed forces and the family lived in military accommodation there. Due to the alleged negligence, Harry became asphyxiated during birth; as a result, he now suffers from profound disabilities. On 31 December 2004, a claim was issued out of the High Court in London. Liability is still to be determined.
The MoD’s provision of secondary medical care for the dependents of servicemen was subject to a complex series of arrangements and has been subject to prior proceedings, (see our previous blog here). In short, SSAFA was responsible for the provision of general and community nursing under a contract with the MoD. The MoD also entered into a contract with Guy’s and St Thomas’s Hospital NHS Trust (“GSST”) to procure all non-emergency secondary care; GSST then entered into a contract with the German hospital, AKV, to provide care to the likes of Mrs Roberts. English midwives employed by SSAFA worked at the AKV hospital as part of the German obstetrics team, where, importantly, all deliveries were obstetrician-led.
Determining the Applicable law under PILA
There was no dispute between the parties that PILA applied. This is because the alleged negligence took place in 2000 and Rome II only came into force on 11 January 2009.
The relevant PILA provisions
Section 11(1) reads as follows: “The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.”
However, the general rule may be displaced under s. 12(1) if the factors which connect the tort with one country show that it is “substantially more appropriate” for that country’s law to apply. The factors to be taken into account, per s. 12(2) are “factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”
Counsel for the Claimant agreed German law was applicable under s. 11 of PILA but relied on s. 12 to argue that the general rule should be displaced. The judge examined the different factors which connected the tort to Germany and England, respectively. These are set out in tabular form below.
|German Law Factors||English Law Factors|
|The tortfeasor was a midwife who was part of a German obstetric team, led by a German obstetrician in a country where perinatal care is led by obstetricians, not midwives.||C and the midwife were English.|
|The tort took place entirely in a German hospital.||Mr Roberts was in the service of the British Crown.|
|All ante-natal care took place in Germany.||The Defendant employer of the alleged tortfeasor and the departmental indemnifier are UK- based and represent UK institutions.|
|The presence of the Roberts family in Germany was not transitory; they could not be classified as temporary visitors.||The midwife was trained in England and posted to Germany to offer an English-type service.|
|The alleged negligence of the midwife was wholly bound up with the procedures and expectations of the German obstetric system, and with this her interrelationship with the German doctors and the hospital (which elements would necessarily be governed by German law).||English midwives were required to adhere to their English registration requirements when practising abroad.|
|The MoD was providing a German hospital obstetrics system for UK service personnel and their families, albeit they sought to ameliorate the experience by employing English-trained midwives.||The alleged negligent midwife, as a registrant of the (then) UKCC could be called to account by reference to the standards deriving from her British registration as a midwife.
Displacing the applicable law under s. 12
This table illustrates that the evaluation of the ‘factors’ making it more appropriate for the law of one country to apply over another is fact dependant. In this case the judge observed that the English midwives were merely “grafted on” to a German obstetrics team working in a German hospital. It is also worth highlighting that trying to persuade a judge that the law of the country where the tort occurred should be displaced will be an uphill battle. Foster J cited ‘Dicey, Morris & Collins on the Conflict of Laws’ (15th Ed.) which states that “The provisions of s. 12 have been applied to displace the law applicable under s. 11 on very few occasions.”
The learned judge went on to consider whether the claim was time-barred under German law (there was no dispute that German law had to be considered per s. 1(a) FLPA). Under German law a party has three years to bring a claim, but time only starts to run once the claimant has knowledge that there has been misconduct or a deviation from accepted standards. The patient will not be imputed with knowledge or expected to “join the dots” to deduce that a required standard had not been met. Accordingly, Mrs Roberts only had the necessary knowledge to start time running when she received a letter in June 2004 which implicated `the midwife as being negligent. Therefore, when the claim was brought in December 2004 it was not out of time under German law.
Disapplication of foreign limitation period
Foster J went on to consider, in the event that she was wrong in holding that Harry’s claim was not out of time under German law, whether the limitation period could be disapplied. A foreign limitation period can be disapplied pursuant to s. 2 of the FLPA where it would “conflict with public policy” or “cause undue hardship”.
The Judge was reminded that the disapplication of a foreign limitation period under s. 2(1) of the FLPA on the grounds of public policy is only exceptionally successfully invoked. The foreign law must outrage an English court’s “sense of justice or decency” and be “manifestly” incompatible with English public policy (per Scarman J in The Estate of Fuld, deceased (No.3)  at p.675). This test will not be met simply because the foreign limitation period is less generous than the comparable English provision (Durham v T&N plc 1 May 1996 Court of Appeal unreported). Further, the fundamental principle of justice with which it is said foreign law conflicts must be clearly identifiable and the principle must be evident in English law. It was also noted at  when citing ‘McGee, Limitation Periods’ (8th ed.):
“Limitation law is about balancing the interests of claimants and defendants and different states may legitimately take different views about where the proper balance lies. Judges should be very slow indeed to substitute their views for the views of a foreign legislature.”
It was accordingly held that the German law of limitation does not recognise the disability of the claimant, unlike in England and Wales where it serves to abrogate the limitation period of 3 years. However, at  it was held that “there is no public policy offence in the disparity between the English policy decision to remove limitation in the case of a disability such as that suffered by Harry, and/or to afford protection to a claimant during their minority, and the German system which does not protect these classes of claimant in this way.”
The disapplication of the limitation period on the alternative basis of undue hardship under s. 2(2) FLPA is also a high bar to meet. Foster J held at :
“… the hardship suffered must be properly described as over and above the hardship that is inevitably caused by the application of the foreign limitation period itself. I interpret “hardship” as meaning significant detriment, since the statute indicates is a subset of the notion of “public policy”. It must therefore be a detriment of real significance which should not be countenanced.”
It was also noted that the case law (for a helpful summary see paragraph  and the sub paragraphs thereto) “compels a highly fact sensitive assessment of undue hardship” and this case concerned “a badly affected victim of cerebral palsy, and a primigravida giving birth in a foreign country … it would be a disproportionate application of the law contrary to public policy, to deprive her of her action on behalf of her son” at . Accordingly, it was held, obiter, that German limitation would be disapplied on the basis of undue hardship. It is also worth noting that Mrs Justice Foster expressly rejected the Defendant’s submission that the Claimant had failed to adduce sufficient evidence of undue hardship and concluded that it was clear from the evidence available and the “unusual circumstances” of the case .
This case illustrates the fact that it will be difficult to displace the general rule under s. 11 of PILA that the applicable law is that of the country where the tort occurred without showing “a clear preponderance of factors” in favour of applying English law. It also highlights the difficulties involved in arguing that a foreign applicable limitation period should be disapplied. Foster J’s judgment provides an excellent analysis and synthesis of the authorities in this complex area of law which merits re-reading. Her (obiter) conclusion demonstrates that, notwithstanding the high threshold, it is possible in appropriate cases to persuade the court to disapply the foreign limitation period.