O'Byrne v Aventis Pasteur SA

Section 35 of the Limitation Act 1980 can permit substitution of a defendant after expiry of the ten-year long-stop period for product-liability claims. This applies where the original defendant was named through a mistake of name or nomenclature, rather than a mistake as to identity, and the statutory conditions for substitution are satisfied.

The court’s jurisdiction is not lost merely because the claimant discovered the mistake before the limitation period expired and continued proceedings against the original defendant. Once the relevant mistake is established, substitution is necessary for the purposes of section 35. The court retains a discretion, in which the claimant’s conduct and any prejudice remain relevant.

The claimant, who alleged that brain damage resulted from a defective HiB vaccine, began proceedings against Aventis Pasteur MSD Ltd, believing it to be the manufacturer. The true manufacturer was Aventis Pasteur SA. The claimant later sought to substitute Aventis Pasteur SA after the ten-year period under the product-liability regime had expired.

Teare J ordered substitution under section 35 of the Limitation Act 1980 and exercised his discretion in the claimant’s favour. The proposed defendant appealed on jurisdictional grounds. The issues were whether section 35 applied to the ten-year extinction period under the European Product Liability Directive and whether substitution remained available where the claimant had discovered the mistake before expiry but had continued against the original defendant.

1. Appeal dismissed. Aventis Pasteur SA accepted that the claimant had made a relevant mistake within section 35. It did not challenge Teare J’s exercise of discretion. The order for substitution therefore stood.
2. The court followed Horne-Roberts v SmithKline Beecham Plc [2001] EWCA Civ 2006, [2002] 1 WLR 1662. Section 11A(3) of the Limitation Act 1980, which implements Article 11 of the European Product Liability Directive 85/374/EEC, applies the Act’s section 35 machinery to the ten-year period. The European Court of Justice had left the conditions for substitution to national procedural law, subject to due regard for the Directive’s personal scope. English law therefore could treat substituted proceedings as having been commenced when the original action was begun.
3. The relevant mistake was one of name or nomenclature, not identity. The claimant had always intended to sue the manufacturer of the particular vaccine. That remained a qualifying mistake even though the claimant learned the manufacturer’s identity before the ten-year period expired and chose initially to continue proceedings against the original defendant.
4. On the proper construction of section 35(5) and (6), either a qualifying mistake under section 35(6)(a), or the alternative circumstance in section 35(6)(b), satisfies the requirement that substitution be necessary for determining the original action. The difference between the wording of section 35 and CPR 19.5 did not produce a different result. The claimant still had to persuade the court to exercise its discretion, but the conduct relied upon by the proposed defendant was relevant to discretion rather than jurisdiction.
5. In a postscript, the court indicated that, even if necessity were treated as a separate inquiry, substitution was necessary for determining the claim against the manufacturer. Each proposed new party and cause of action should be considered separately. The appeal was dismissed.

• High Court, Queen’s Bench Division: Teare J ordered on 20 October 2006 that Aventis Pasteur SA be substituted for Aventis Pasteur MSD Ltd under section 35 of the Limitation Act 1980.
• Court of Appeal (Civil Division): Appeal dismissed. The substitution order was upheld.