OB v Aventis Pasteur SA

This appeal concerned the meaning of the phrase "instituted proceedings against the producer" in article 11 of Council Directive 85/374/EEC (the product liability directive) and its interaction with national rules permitting substitution of a defendant after expiry of the national limitation period (Limitation Act 1980 section 35 and CPR rule 19.5(3)(a)). The Court of Justice had held that national procedural law governs substitution but that national courts must ensure such substitution accords with the directive's personal scope, as defined in article 3. The House of Lords held that that Strasbourg answer did not make the point beyond reasonable doubt and that a further reference to the Court of Justice was required for clarification. The Lords explained that national courts may in principle treat proceedings begun against a wrongly named defendant as proceedings against the producer, provided the proceedings can plausibly be regarded as having been brought against the producer within the meaning of article 3 and subject to the statutory safeguards and discretion in section 35 and the Civil Procedure Rules.

The claimant alleged that a HIB vaccine administered on 3 November 1992 was defective and caused brain damage. Proceedings began on 2 November 2000 against APMSD, a United Kingdom distributor mistakenly sued as producer. On 16 October 2002 the claimant issued proceedings against the actual manufacturer, Aventis Pasteur SA (APSA), and sought substitution of APSA for APMSD under rule 19.5(3)(a). The defendant contended the claim was statute-barred by the ten-year "long-stop" in article 11 of Directive 85/374/EEC and section 11A(3) of the Limitation Act 1980, and that substitution after the ten years would be incompatible with article 11. Judge Brunning referred three preliminary questions to the Court of Justice of the European Communities as to when a product is put into circulation and whether national courts may treat proceedings begun against a mistaken defendant as proceedings "against the producer" for article 11.

The Commission, the Italian Government and the Advocate General were sceptical of permitting substitution in every case after the ten-year cut-off; they emphasised that a supplier could be deemed the producer under article 3 in certain circumstances. The Court of Justice answered that national procedural law normally determines substitution, but national courts must ensure due regard is paid to the directive's personal scope as set out in articles 1 and 3. The Court of Justice did not give a definitive prohibition of substitution after the ten-year period.

The House of Lords considered the CJEU answer. Some Law Lords considered paras 34–38 of the CJEU judgment clear that substitution is a matter for national law subject to ensuring the proceedings can plausibly be regarded as against the producer. Others considered that a reasonable doubt remained whether substitution after the long-stop is permissible only if the original proceedings were brought against a person who already fell within article 3. Because that ambiguity was not beyond reasonable argument, the House ordered a further reference to the Court of Justice for clarification. The decision therefore suspended final determination; the Lords invited the parties to propose a reference and expressed hope the CJEU could expedite the matter under its Rules of Procedure.

Issues considered: (i) whether the ten-year long-stop in article 11 prevents substitution of a correctly named producer after that period where earlier proceedings were against a mistakenly named non-producer; (ii) whether national rules on substitution (Limitation Act 1980 s35 and CPR r19.5) are compatible with article 11; and (iii) the scope of article 3 of the Directive. The House's reasoning was that national courts may allow substitution provided the substituted proceedings genuinely fall within the Directive's personal scope, but that the CJEU should be asked to resolve the remaining doubt.

The House of Lords held that the Court of Justice's judgment established that substitution is principally a matter of national procedural law but must respect the personal scope of the Directive as set out in article 3. Because the meaning of paragraphs 34–38 of the Court of Justice's judgment was not free from reasonable doubt, the House ordered a further preliminary reference to the Court of Justice for clarification. The House recognised that substitution can be permitted where proceedings can plausibly be regarded as proceedings against the producer, subject to the statutory and procedural safeguards of section 35 of the Limitation Act 1980 and CPR rule 19.5(3)(a).

Original proceedings: claim issued 2 November 2000 against APMSD (mistaken defendant); new proceedings against APSA issued 16 October 2002 with application to substitute APSA for APMSD. Judge Brunning referred three questions to the Court of Justice. The Court of Justice gave its ruling and the matter proceeded to the Court of Appeal ([2007] EWCA Civ 939). The appeal reached the House of Lords, which ordered a further reference to the Court of Justice for clarification.