O'Byrne v Sanofi Pasteur Ltd and Another (Case C-127/04)
| Jurisdiction | England & Wales |
| Judgment Date | 09 October 2007 |
| Neutral Citation | [2007] EWCA Civ 966 |
| Docket Number | Case No: B3/2006/2388 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 2007 |
[2007] EWCA Civ 966
Sir Anthony Clarke Mr
Lady Justice Arden and
Lord Justice Moore-Bick
Case No: B3/2006/2388
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Teare
HQO2X00848
George Leggatt QC and Prashant Popat (instructed by Arnold & Porter (UK) LLP) for the Appellant
Nigel Godsmark QC and Hugh Preston (instructed by Freeth Cartwright LLP) for the Respondent
Hearing dates: 16 and 17 July 2007
Judgement
Sir Anthony Clarke, MR:
This is the judgment of the court.
Introduction
On 20 October 2006 Teare J ordered that Aventis Pasteur SA ('APSA') be substituted for Aventis Pasteur MSD Ltd ('APMSD') as the defendant in this action. APSA and APMSD have changed their names to Sanofi Pasteur SA and Sanofi MSD Ltd respectively, but we will continue to refer to them as APSA and APMSD. This is an appeal by APSA against the order for substitution, brought with the permission of the judge.
The order was made under section 35 of the Limitation Act 1980 ('the 1980 Act'). As formulated on behalf of APSA, the appeal raises two questions as follows:
i) whether section 35 is applicable where the time limit which has expired is the ten year final cut-off date for enforcing rights conferred pursuant to the European Product Liability Directive of 25 July 1985, 85/374/EEC, ('the Directive'); and
ii) if so, whether on the proper construction of section 35, there is power to order substitution in circumstances where, although the name of the defendant was given in mistake when the action was begun, the claimant discovered his mistake before the limitation period had expired and elected at that time to pursue claims against the original defendant.
The first issue was not argued before the judge because it was accepted that he was bound by the decision of this court in Horne-Roberts v SmithKline Beecham Plc [2001] EWCA Civ 2006, [2002] 1 WLR 1662 (' Horne-Roberts') to hold that section 35 is applicable to the ten year cut-off period. Mr Leggatt submits that we should not follow Horne-Roberts in the light of the decision of the European Court of Justice ('the ECJ') in the present case. The judge decided the second issue in favour of the claimant. Mr Leggatt submits that he was wrong to do so.
The claim
The claimant was born on 2 November 1991. So he is now 15 years of age. On 6 October and on 3 November 1992 (when he was one), he was vaccinated with two doses of HiB vaccine. Thereafter he suffered severe brain damage. It is his case that the brain damage was caused by the vaccine. On 1 November 2000, the claimant commenced an action against APMSD. He did so because his solicitors believed that APMSD was the manufacturer or producer of the vaccine. It is accepted by APSA that that was a genuine mistake. The application to substitute APSA for APMSD was made because it is now common ground that APSA was the manufacturer. It was made on 10 March 2003 after the ten year period had expired.
By section 2(1) of the Consumer Protection Act 1987 ('the CPA'), where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies is liable for the damage. It is strict liability. The questions which arise in any action are essentially two, namely whether the damage was caused by a defect in a product (here the HiB vaccine) and whether the defendant is a person to whom subsection (2) applies.
Subsections (2) and (3) provide:
“(2) This subsection applies to —
(a) the producer of the product;
(b) any person who, by putting his name on a product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;
(c) any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.
(3) Subject as aforesaid, where any damage is caused wholly or partly by a defect in a product, any person who supplied the product (whether to the person who suffered the damage, to the producer of any product in which the product in question is comprised or to any other person) shall be liable for the damage if –
(a) the person who suffered the damage requests the supplier to identify one or more of the persons (whether still in existence or not) to whom subsection (2) above applies in relation to the product;
(b) that request is made within a reasonable period after the damage occurs and at a time when it is not reasonably practicable for the person making the request to identify all those persons ; and
(c) the supplier fails, within a reasonable time after receiving the request, either to comply with the request or to identify the person who supplied the product to him.”
Although its preamble does not expressly say so, it is common ground that the CPA was enacted to give effect to the Directive. It is also common ground that the CPA must be construed so as to give effect to the Directive. The CPA is not in identical terms to the Directive. We set out the relevant terms of the Directive because the ECJ was of course considering the Directive and not the CPA. It provides, as far as relevant:
“Article 1
The producer shall be liable for damage caused by a defect in his product.
Article 3
1. 'Producer' means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer.
2. Without prejudice to the liability of the producer, any person who imports into the Community a product for sale, hire, leasing or any form of distribution in the course of his business shall be deemed to be a producer within the meaning of this Directive and shall be responsible as a producer.
3. Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product. The same shall apply, in the case of an imported product, if this product does not indicate the identity of the importer referred to in paragraph 2, even if the name of the producer is indicated.”
As appears from the Directive and the Act, the person liable is not limited to the manufacturer of the product. The scheme of the Directive is however to define producer in terms that are wide enough to include producers of raw materials and importers and to provide that in some circumstances a supplier is to be treated as a producer. In this way it casts the net wide in order to provide redress to the consumer.
We understand that the case that the claimant now wishes to advance is that APSA was the manufacturer and thus the (or a) producer within the meaning of the Directive and that he is content to replace APMSD with APSA as the defendant to the action.
We should perhaps note that article 4 provides that it is for the injured person to prove the damage, the defect and the causal relationship between the defect and the damage, whereas article 7 provides that the producer shall not be liable if he proves, among other things, that he did not put the product into circulation. Those provisions are reflected in the CPA.
Limitation
The Directive contains express provisions relating to limitation periods. They reflect the tenth and eleventh recitals to the Directive, which state (among other things) that a uniform period of limitation for the bringing of action for compensation is in the interests both of the injured person and of the producer and that “liability should expire after a reasonable period of time, without prejudice to claims pending at law.” Article 10 provides for a three year limitation period. It also provides that the laws of Member States regulating suspension or interruption of the limitation period shall not be affected by the Directive. Article 11 provides:
“Article 11
Member States shall provide in their legislation that the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.”
It should be noted that the effect of article 11 is to extinguish the right after ten years and not merely to bar the claim.
By section 6 and schedule I of the CPA a new section 11A was added to the 1980 Act, which reflects articles 10 and 11 of the Directive. In particular, article 11 is reflected in section 11A(3). This has the effect of applying section 35 of the 1980 Act to a claim under the CPA because section 35 applies “for the purposes of this Act”, which now includes section 11A.
Section 35(3) of the 1980 Act provides (so far as material) as follows:
“(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim … to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.”
but this is subject to subsections (4) to (6), which provide, so far as relevant, as follows:
“(4) Rules of court may provide for allowing a new claim to which subsection (3) applies to be...
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