Court of Appeal
Published November 19, 2007

O’Byrne v Aventis Pasteur MSD Ltd

Before Sir Anthony Clarke, Master of the Rolls, Lady Justice Arden and Lord Justice Moore-Bick Judgment October 9, 2007

Where a claimant had made a mistake about the name but not the identity of the defendant, that name could be substituted after the expiry of the limitation period, where substitution was necessary required in order to determine the original action.

The Court of Appeal so held, dismissing the appeal of the substituted defendant, Aventis Pasteur SA, against the order of Mr Justice Teare ( The Times November 22, 2006; [2007] 1 WLR 757) for substitution of that company for Aventis Pasteur MSD Ltd as a defendant to the action by the claimant, Declan O’Byrne, suing by his mother and next friend, for damages for personal injury under the Consumer Protection Act 1987.
Mr George Leggatt, QC and Mr Prashant Popat for Aventis; Mr Nigel Godsmark, QC and Mr Hugh Preston for the claimant.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that the claimant was now aged 15. In October and November 1992, he was vaccinated with two doses of HiB vaccine. Thereafter he suffered severe brain damage.

It was his case that the brain damage was caused by the vaccine. On November 1, 2000 the claimant began an action against Aventis Pasteur MSD Ltd because his solicitors believed that company was the manufacturer or producer of the vaccine. That was a genuine mistake.

The application to substitute Aventis Pasteur SA for MSD was made because SA was the manufacturer. It was made in March 2003 after the expiry of the ten-year limitation period in Council Directive 85/374 /EEC on the approximations of the laws, regulations and administrative provisions of the member states concerning liability for defective products (OJ August 7, 1985 L210/29-33).

The appeal raised two questions: (i) whether section 35 of the Limitation Act 1980, which contained the power to substitute a new party by subsections (5) and (6), was applicable where the expired time limit was the ten-year final cut-off date for enforcing rights conferred by the Directive, and (ii) if so, whether there was power to order substitution under section 35 where, although the defendant’s name was given by mistake at the commencement of the action, before the limitation period expired, the claimant discovered his mistake and then elected to pursue claims against the original defendant.

There was no argument on the first issue 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 section 35 applied to the ten-year cut-off period.

Mr Leggatt submitted that the court should not follow Horne-Robertsbecause of the decision of the European Court of Justice in O’Byrne v Sanofi Pasteur LSD Ltd (formerly Aventis Pasteur MSD Ltd and Another (Case C-127/04) ([2006] 1 WLR 1606).

He submitted that the claimant’s rights were extinguished unless he commenced proceedings against a person who was a producer within the meaning of the Directive within the ten-year period. If so, in the present case proceedings were not commenced against someone who was a producer within the ten-year period.

His Lordship said there was nothing in the European Court’s judgment to suggest that it agreed with 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 so that the true manufacturer could be sued after the expiry of the ten-year period.

Their Lordships held that section 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. Accordingly, the question whether or not there was an exception to the principle of stare decisis did not arise. Horne-Roberts was correctly decided.

Since subsitution was necessary to determine the action, the appeal was dismissed.

Solicitors: Arnold Porter (UK) LLP; Freeth Cartwright LLP, Nottingham.

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