O'Byrne v Aventis Pasteur Msd Ltd.

Under section 35 of the Limitation Act 1980, substitution may be permitted where a defendant’s name was given in a claim in mistake for the name of the proper defendant. In such a case, substitution is to be regarded as necessary for determining the original action. The jurisdiction is not lost because the claimant discovered the mistake before the relevant limitation period expired but continued proceedings against the original defendant. The court must exercise its discretion consistently with the personal scope of Directive 85/374 and the overriding objective. The expiry of a limitation period is relevant, but loss of a limitation defence does not necessarily amount to prejudice warranting refusal.

The claimant alleged that brain damage resulted from a HiB vaccine. He commenced proceedings against Aventis Pasteur MSD Ltd, believing it to be the manufacturer. It later emerged that Aventis Pasteur SA was said to be the manufacturer. The claimant amended his claim to maintain claims against the original defendant, attempted to join Aventis Pasteur SA, and then applied to substitute it after the applicable ten-year product-liability period had expired.

The issue was whether section 35 of the Limitation Act 1980 gave the court jurisdiction to make the substitution and, if so, whether the discretion should be exercised in the claimant’s favour.

1. Jurisdiction. The claimant satisfied section 35(6)(a) of the Limitation Act 1980. The claims pleaded against Aventis Pasteur MSD Ltd as manufacturer or producer gave its name in mistake for the name of Aventis Pasteur SA.
2. The court considered that section 35(4)–(6) should be construed so that, where the statutory mistake condition is satisfied, substitution is regarded as necessary for determining the original action. This construction was consistent with CPR Part 19.5(3)(a) and the approach in Morgan-Est (Scotland) Ltd. v Hanson Concrete Products Ltd. [2005] 1 WLR 2557.
3. Even on the alternative construction requiring necessity to be considered separately, substitution was necessary because the claimant continued to advance a claim against the producer or manufacturer under the Consumer Protection Act 1987. The result would differ if the only surviving claim were one unaffected by the original mistake.
4. Discretion. Following the European Court of Justice ruling, the court had to give due regard to the personal scope of Directive 85/374, particularly Articles 1 and 3, and to the overriding objective. Aventis Pasteur SA admitted that it was the producer or manufacturer, so substitution respected the Directive’s personal scope.
5. The court regarded the likely corporate awareness of the original proceedings, knowledge of the claimant’s intention to regularise the mistake, the claimant’s reasonable decision initially to pursue joinder, the absence of substantive prejudice, and the procedural delay caused by the reference to the European Court of Justice as favouring substitution. The expiry of the ten-year period was relevant but did not determine the exercise of discretion.
6. The court followed the approach of Jacob LJ in Morgan-Est concerning the consequences of an error by the claimant’s solicitors, rather than the obiter observations of Smith LJ in Martin Kaisary and the Royal Free Hospital Trust [2005] EWCA Civ 594.
7. Permission was granted to substitute Aventis Pasteur SA for Aventis Pasteur MSD Ltd as defendant.