Sapporo Breweries Ltd (A company incorporated under the laws of Japan) v Lupofresh Ltd

Facts

The appellant (C) appealed against a decision ([2011] EWHC 2806 (QB), [2012] R.T.R. 11) about the affect of an assignment to the second respondent Ministry of Defence of her claims against the first respondent German insurer (E) in respect of the death of her husband in Germany while serving with HM Forces.

The assignment provided for C's claims for the costs outlaid by the MOD for emergency services, medical treatment, repatriation costs and pensions to be assigned to the MOD, but provided that any personal claims would be unaffected. The judge held that the assignment had been effective to assign to the MOD the right to recover from E the amount of pension payments it made to C.

C argued that the assignment, which was to be construed under English law, had not been effective to transfer to the MOD any part of her right to damages for loss of maintenance under the German Civil Code s.844, in particular any rights in respect of army pension payments she had received since her husband's death.

Held

The assignment was to be construed by applying German law. Insofar as there had been any implicit choice of law for the purposes of the Rome Convention art.3, it was German law. The assignment related to C's claims, which were governed by German law, in respect of an accident in Germany, where she and her husband had been living and where C was still living at the date of the assignment. The assignment was intended to enable the MOD to recoup from the tortfeasor, who was a German national or his German insurer, the cost of outlays arising out of that accident and those claims governed by German law. Those factors clearly outweighed the factors linking the assignment to England and English law. If there was no implicit choice of law under art.3(1), the assignment was governed by German law under art.4 because Germany was the country with which the assignment was most closely associated. Read in its factual context, it was clear that the costs specified in the assignment were the costs incurred by the MOD, which included pension payments being paid to C by the MOD at the date of the assignment. It was obvious that the assignment was intended to catch such payments. That conclusion was not undermined by the statement in the assignment that C's personal claims would remain unaffected. Insofar as E's liabilities for C's maintenance under s.844 exceeded the amount of pension payments made to her, E remained liable for the excess (see paras 12-13, 17-18 of judgment).

Appeal dismissed

Comment

An assignment to the Ministry of Defence of some of a widow's claims against a German insurer in respect of her husband's death in a road traffic accident while serving with HM Forces in Germany was to be construed under German law. The assignment had clearly been intended to include army pension payments to the widow.

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