Case Alert - [2018] EWHC 19 (QB)

Governing law for vicarious liability/joint liability claims

The issue in this case was which governing law applied for determining limitation, where the UK government was said to be liable for acts committed in Cyprus in the 1950s. The following points were decided by the court:

(1) The claim for vicarious liability arose in the place where the primary tort was committed – here, Cyprus: "vicarious liability is not, conceptually, a tort. It is the description of a legal rule which imposes liability for someone else's tort. I therefore do not see how the party vicariously liable, wherever located in the world, can be taken to have incurred vicarious liability other than in the place where the primary tort is committed".

(2) The claim for joint liability/common design tort is not like a claim for vicarious liability. However, the judge concluded that "the location of the common design liability should be the same as the location of the ultimate individual perpetrator's liability, which is also that of the other partner in the common design. I think it is artificial to treat the common design liability of the defendants, jointly with the then Colonial Administration, as located in a different country from that in which the ultimate perpetrators of the assaults, who executed the design, are located".

However, despite the above findings, Kerr J went on to find that the "flexible exception" found in Lord Wilberforce's speech in Boys v Chaplin [1971] applied, so that the law of England, and not Cyprus should be applied for the purpose of determining whether they were committed. The law of limitation governing those alleged torts was therefore also English law.