O’Byrne v Aventis – ECJ decision does not affect Horne-Roberts v SmithKline Beecham [2007] EWCA Civ 939

The English court has power under s35 Limitation Act 1980 and CPR 19.5 to substitute one person for another as a party after the expiry of the ten-year longstop under the European Product Liability Directive (EEC) 85/374 as enacted by the Consumer Protection Act 1987. The decision of the European Court of Justice (ECJ) in O’Byrne v Sanofi Pasteur MSD Ltd left it to the national procedural law to determine when it is permissible for one person to be substituted for another where a mistake has been made. The decision in Horne-Roberts v SmithKline Beecham Plc therefore remains good law.

Comment: like the Horne-Roberts case which concerned the manufacturer of a batch of MMR vaccine, this claim was brought against the manufacturer of a batch of vaccine, on this occasion for HiB. The claimant did not apply to substitute a different manufacturer as defendant until after the expiry of the ten-year longstop period which extinguishes and not merely bars the claim “unless the injured person has in the meantime instituted proceedings against the producer”. The ECJ could have said that this precluded the possibility of substituting another party as defendant after expiry of that period but it did not. The Court of Appeal therefore followed the approach taken in Horne-Roberts which applied the theory of “relation back” under s35 Limitation Act in these circumstances. This deems any new claim to be a separate action commenced on the same date as the original action and treats the person substituted as though they have always been a party to the action (thinking of Back to the Future may help here). The fact that the ten-year longstop extinguished the claim is therefore irrelevant – relation back rewrites history so that it’s as though the claim was always made against the correct party.