Simeon Maskrey QC and Hugh Preston in Supreme Court ruling on substitution in product liability claims
On 26th May 2010 the Supreme Court gave judgment in the latest chapter in the long running vaccine damage case, O’Byrne v Aventis Pasteur.
The Claimant issued proceedings (within the 10 year liability period under the EC Product Liability Directive) against D1, in the mistaken belief that it was the manufacturer of the vaccine. In fact, the manufacturer was D2, and an application was therefore made (after the expiry of the 10 year period) to substitute D2 for D1.
Domestic law allows for a new defendant to be substituted for an existing defendant named in error in the original proceedings, notwithstanding that the applicable limitation period may have expired prior to the substitution order being made. See s. 35 Limitation Act 1980. However, D2 has argued that these provisions are inconsistent with the EC Directive and the strict terms of the 10 year longstop.
This discrete issue has been considered in O’Byrne by the High Court in 2003, the ECJ in 2006, the Court of Appeal in 2007, the House of Lords in 2008, the ECJ again 2009, and now the Supreme Court in 2010. The dice have therefore been thrown several times in these proceedings. The high water mark for the Claimant was in 2008, when 4 out of 5 Law Lords considered that the ECJ had clearly ruled in favour of the Claimant in permitting substitution, but because the 5th Law Lord had doubts about the matter, a second reference to the ECJ was set in motion on the grounds that the first ECJ ruling in 2006 was unclear. However, when the ECJ gave a second ruling in 2009, the position remained in doubt with both sides still claiming victory.
The final round has gone to the Defendant. Having mooted briefly the possibility of a third reference to the ECJ, the Supreme Court have thankfully now put an end to this extraordinary dispute by giving judgment today that substitution of D2 is not permissible on the facts of this case, the 10 year period having expired without proceedings having been instituted against D2 in the meantime.
By a sidewind, there are two further rulings here. Firstly, it is made clear that when a producer (e.g. the manufacturer, EU importer, supplier etc.) is sued within 10 years, the 10-year time limit is interrupted ONLY as against that particular producer, and it will not normally be possible to seek to join or substitute additional producers later on, assuming that that 10-year period has in the meantime expired. That marks a departure from the way in which the EC Directive has previously been interpreted, further emphasising the importance of getting the right defendant in the frame from the outset. Secondly, para. 11 of the ruling suggests that there is not one 10-year liability period, but a different start date for each potential producer, depending upon when that particular producer put the product into circulation. That too marks a departure from traditional thinking and has wider implications.
Simeon Maskrey QC and Hugh Preston of 7 Bedford Row have been instructed throughout for the claimant.