Horne-Roberts v SmithKline Beecham plc

Section 35 of the Limitation Act 1980 may permit the substitution of a defendant after expiry of the ten-year long-stop in section 11A(3), provided that proceedings were started in time and the statutory and procedural conditions for substitution are met. The long-stop remains a time limit under the Act. Its extinguishing effect does not exclude section 35, since Parliament expressly excluded the long-stop from other provisions but did not exclude section 35.

A qualifying mistake is not confined to a bare misnomer. The intended party must be identifiable by a description specific to the case. A claimant who names the wrong manufacturer, while intending to sue the manufacturer of an identified product batch, may satisfy that requirement. Any unfairness is addressed through the court's discretion.

The claimant alleged that an MMR vaccine administered in 1990 was defective and caused autism. Proceedings issued in 1999 named Merck as defendant, because the claimant's solicitors mistakenly attributed the vaccine batch number to Merck. The batch was in fact a product of SmithKline Beecham.

After the ten-year period in section 11A(3) of the Limitation Act 1980 had expired, the claimant applied to substitute SmithKline Beecham for Merck. Bell J granted the application on 26 February 2001. The defendants appealed on whether section 35 and CPR 19.5 permitted substitution after the long-stop, and whether the mistake was of the necessary kind.

1. Appeal dismissed. Lord Justice Keene gave the court's reasoning. Lady Justice Hale and Dame Elizabeth Butler-Sloss P agreed. Bell J was correct to permit the substitution, and the appeal was dismissed with costs.
2. Section 11A(3) of the Limitation Act 1980 creates a ten-year time limit which also extinguishes the right of action. It nevertheless remains a “time limit under this Act” for section 35(3). Parliament expressly excluded the long-stop from sections 28, 32 and 33, but made no equivalent exclusion for section 35. That omission was deliberate and significant.
3. Section 35 therefore allowed a rules-based substitution after the long-stop where its conditions were met. The construction did not conflict with Article 11 of Directive 85/374/EC. Article 11 preserves claims where proceedings have been instituted, and it does not expressly address proceedings begun in time but involving a qualifying mistake as to the party.
4. The court followed the approach in The “Sardinia Sulcis” and “AL Tawwab” [1991] 1 Lloyds L.R. 201. The relevant inquiry is whether the intended defendant can be identified by a description specific to the particular case. The test is narrower than an intention to sue whoever may be liable, but it is not confined to a typographical error in a name.
5. The claimant intended throughout to sue the manufacturer of the vaccine identified by batch number 108A41A. That was a sufficiently specific description. Naming Merck was therefore a qualifying mistake for section 35(6)(a) and CPR 19.5, giving the court power to substitute the true manufacturer.
6. Although substitution may initially appear unfair where the new defendant is unconnected with the original defendant and learns of the claim late, section 35 leaves the court a discretion to prevent injustice. The exercise of that discretion was not challenged on appeal.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the order permitting SmithKline Beecham to be substituted for Merck as defendant.
• High Court, Queen's Bench Division (Bell J): On 26 February 2001, the judge rejected the defendants' objections to substitution and exercised discretion in the claimant's favour.