OB (by his mother and litigation friend) (FC) (Respondent) v Aventis Pasteur SA (Appellants)

A final domestic court must refer a question of Community law where the correct interpretation is not so obvious as to leave no scope for reasonable doubt.

National procedural law may determine whether the actual producer can replace a mistakenly named defendant in a product liability claim. It must nevertheless respect the exhaustive personal scope of the product liability regime and the ten-year long-stop. The majority considered that substitution could be permissible where the original proceedings were genuinely intended to be against the producer. Since that interpretation of the earlier European ruling remained reasonably arguable, the question required a further reference to the Court of Justice.

A child alleged that a defective vaccine caused brain damage. Proceedings were commenced within ten years against the producer's United Kingdom distributor, mistakenly believed to be the producer. After the ten-year period had arguably expired, the claimant sought to substitute the French manufacturer under section 35 of the Limitation Act 1980 and rule 19.5(3)(a) of the Civil Procedure Rules.

Judge Brunning referred questions concerning substitution and the product liability Directive to the Court of Justice. Following its ruling, the case reached the Court of Appeal and then the House of Lords on appeal from [2007] EWCA Civ 939. The central issue was whether the European ruling clearly permitted substitution where the original defendant was not a producer within article 3, or whether a second reference was required.

1. Further reference ordered. Lord Hoffmann proposed, and all members of the Appellate Committee agreed, that a further reference should be made to the Court of Justice and that the domestic proceedings should be adjourned generally pending its answer.
2. Lord Rodger held that the relevant passages of the earlier European judgment were not clear beyond the bounds of reasonable argument. Under the principle in Srl CILFIT v Ministry of Health, a final national court could refrain from referring only where the correct interpretation was so obvious as to leave no scope for reasonable doubt. Lord Hope agreed that Lord Rodger's contrary interpretation was reasonably arguable. Baroness Hale likewise accepted that the matter could not be regarded as completely beyond doubt.
3. Lord Hoffmann considered that the Court of Justice had left the procedural conditions for substitution to national law, subject to due regard for the exhaustive personal scope of articles 1 and 3 of Council Directive 85/374/EEC. In his view, proceedings plainly intended to be against the producer could be treated as such despite use of the wrong name, provided they could plausibly be regarded as proceedings against the producer. Existing proceedings could not merely be used as a pretext to join a producer after expiry of article 11's ten-year long-stop. Lord Walker agreed fully with Lord Hoffmann, while Lord Hope took the same view of the European judgment.
4. Lord Rodger identified the competing interpretation. The Court of Justice might have meant that substitution after ten years was permissible only where proceedings had been commenced within that period against a person falling within article 3. Although Lord Hoffmann's interpretation might be correct, that competing view created a real doubt requiring a reference.
5. Baroness Hale considered substitution consistent with the European ruling and just on the facts. She emphasised that section 35 of the Limitation Act 1980 and rule 19.5(3) of the Civil Procedure Rules would not permit substitution where it would be unjust to the person substituted. The substantive substitution issue was not finally determined.

1. House of Lords: On appeal in [2008] UKHL 34, ordered a further reference to the Court of Justice and adjourned the proceedings generally.
2. Court of Appeal: The appeal came to the House from the decision reported as [2007] EWCA Civ 939.
3. Court of Justice: Answered questions referred by Judge Brunning concerning when a product was put into circulation and whether national law could permit substitution of the actual producer. The proper meaning of its answer concerning substitution remained in dispute.
4. First instance: Judge Brunning referred three questions for a preliminary ruling after the claimant sought to substitute the French manufacturer for the mistakenly sued United Kingdom distributor.