| PRACTICE — Parties — Substitution — Claimant suffering severe brain damage after vaccination — Claimant bringing action against distributor of vaccine mistakenly believing it to be manufacturer — Distributor serving defence stating not manufacturer — Claimant applying after expiry of limitation period to substitute manufacturer for distributor as defendant — Whether substitution “necessary for determination of original action” — Whether substitution to be allowed — Limitation Act 1980, s 35 (4) (5) (6) — Council Directive 85/374/EEC, art 11
O’Byrne v Aventis Pasteur MSD Ltd [2007] EWCA Civ 966
CA: Sir Anthony Clarke MR, Arden and Moore-Bick LJJ: 9 October 2007
A party could be substituted under s 35 of the Limitation Act 1980 where the ten-year limitation period for making a claim for damage caused by a defective product had expired, even where the correct party was known to the claimant before the limitation period expired, if the claimant had made a mistake about the name of the defendant and substitution was necessary for the purpose of determining the original action.
The Court of Appeal so held, dismissing the appeal of the substituted defendant, Aventis Pasteur SA, against the order of Teare J on 20 October 2006 [2007] 1 WLR 757 substituting that company for Aventis Pasteur MSD Ltd as a defendant to the action of the claimant, Declan O’Byrne, for damages for personal injury under the Consumer Protection Act 1987.
SIR ANTHONY CLARKE MR, giving the judgment of the court, said that the appeal raised two questions: (1) whether s 35 of the 1980 Act was applicable where the expired time limit was the ten-year final cut-off date for enforcing rights conferred by Council Directive 85/374/EEC (“the European Product Liability Directive”); and (2) if so, whether there was power under s 35 to order substitution where, although the defendant’s name was given in mistake when the action was begun, the claimant discovered his mistake before the limitation period expired and elected at that time to pursue claims against the original defendant. The first issue was not argued before the judge because he was bound by the Court of Appeal decision in Horne-Roberts v SmithKline Beecham plc [2002] 1 WLR 1662 to hold that s 35 was applicable to the ten-year cut-off period. Mr Leggatt submitted that the court should not follow Horne-Roberts’s case because of the decision of the European Court of Justice in the present case [2006] 1 WLR 1606. It was submitted that the claimant’s rights were extinguished unless within the ten-year period he commenced proceedings against someone who was a producer within the meaning of the Directive. If that were correct, proceedings were not commenced against a person who was a producer within the ten-year period. There was nothing in the European court’s judgment to suggest that it accepted that submission. The judgment supported Mr Godsmark’s view that it was for national courts applying their own procedural law to decide whether substitution was permissible to enable the true manufacturer to be sued after the ten-year period expired. The court concluded that s 35 of the 1980 Act was capable of applying where the ten-year period had expired. The European court’s decision was not inconsistent with Horne-Roberts’s case. It followed that the question whether or not there was an exception to the principle of stare decisis did not arise. The court was bound by Horne-Roberts’s case which was correctly decided. Given that the defendant accepted that there was a relevant mistake within s 35, it followed that the substitution was necessary for the purpose of determining the original action within the meaning of s 35(5) and (6), and given that the way the judge exercised his discretion was not challenged, the appeal was dismissed. |
