Horne-Roberts v SmithKline Beecham Plc and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,LORD JUSTICE HALE |
| Judgment Date | 18 December 2001 |
| Neutral Citation | [2001] EWCA Civ 2006 |
| Docket Number | Case No: A2/2001/0611 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2001 |
[2001] EWCA Civ 2006
The President
Lady Justice Hale and
Lord Justice Keene
Case No: A2/2001/0611
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUENS BENCH DIVISION (MR JUSTICE BELL)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Michael Spencer Q.C. and Prashant Popat (instructed by Davies Arnold Cooper, London EC4Y 8DD for the Appellant)
Augustus Ullstein Q.C. (instructed by Alexander Harris of Altrincham WA14 2DW for the Respondent)
This appeal, against a decision of Bell J. dated 26 February 2001, raises issues of some importance about the Limitation Act 1980 ("the 1980 Act") as amended by the Consumer Protection Act 1987 ("the 1987 Act"). In particular it concerns the circumstances (if any) in which the court has power to allow the substitution of a new party for a party originally named in the action once the "long-stop" period of 10 years referred to in section 11A(3) of the 1980 Act has expired.
The facts of the case are not complicated. The claimant was born on 29 June 1989. On 20 June 1990 he was vaccinated with a vaccine against measles, mumps and rubella, commonly known as an MMR vaccine. It is his case that, due to defects in the vaccine, this led to him becoming autistic. His claim is one of a large number of claims made on behalf of children who allege that they have been injured by MMR vaccine.
Such vaccines were, at the material time, manufactured by three pharmaceutical companies, namely Smithkline Beecham plc/Smith Kline and French Laboratories Limited (together "SK"), Merck and Co. Inc. ("Merck") and Aventis Pasteur MSD Limited. The solicitors acting for the claimant had their own guidance notes to enable them to identify the manufacturer of the vaccine used in any individual case by reference to the batch number. The person within that firm of solicitors correctly identified the batch number of the vaccine as 108A41A. That should have indicated to him that it was an SK product. However, as a result of some mistake, he attributed it to Merck. Consequently, when proceedings were issued on 25 August 1999, the claim was brought against Merck as the defendant.
The error only came to light almost one year later when, on 22 August 2000, Merck's solicitors wrote to the claimant's solicitors to say that the batch number was most unlikely to correspond to a Merck batch number. Only then did the claimant's solicitors realise that the manufacturer of the vaccine was SK.
It has been agreed that, for the purpose of the application now under appeal, the date of vaccination is to be treated as the "relevant time" from which the period of 10 years specified in section 11A of the 1980 Act runs. But even on that basis more than 10 years had passed by the time the error as to the manufacturer had been appreciated. Fresh proceedings could not have been commenced against SK. However, on 12 October 2000 the claimant's solicitors applied to substitute SK for Merck as the defendant in the proceedings already issued.
The claim in those proceedings is brought under Part 1 of the 1987 Act, which seeks to implement Directive 85/374/EC ("the Directive") on liability for defective products. The 1987 Act made various persons, including the producer of the product, liable for any damage caused wholly or partly by a defect in the product, the liability being strict though subject to a number of possible defences set out in section 4. Section 6(6) amended the 1980 Act by making the amendments set out in Schedule 1. By that method it inserted a new section 11A into the 1980 Act and amended sections 12(1), 14, 28, 32 and 33 of that Act.
Section 11A of the 1980 Act, insofar as material for present purposes, provides:
"(1) This section shall apply to an action for damages by virtue of any provision of Part1 of the Consumer Protection Act 1987. (2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period of ten years from the relevant time, within the meaning of section 4 of the said Act 1987; and this subsection shall operate to extinguish a right of action and shall do so whether or not that right of action had accrued, or time under the following provisions of this Act had begun to run, at the end of the said period of ten years.
(4) Subject to subsection (5) below, an action to which this section applies in which the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to the plaintiff or any other person or loss of or damage to any property, shall not be brought after the expiration of the period of three years from which ever is the later of –
(a) the date on which the cause of action accrued; and
(b) the date of knowledge of the injured person or, in the case of loss of or damage to property, the date of knowledge of the plaintiff or (if earlier) of any person in whom his cause of action was previously vested."
Subsection (5) is not in fact relevant to the present case. In summary, therefore, section 11A(2) disapplies any of the preceding time limits, so far as an action for damages under Part 1 of the 1987 Act is concerned, and new time limits are imposed by subsections (3) and (4).
Section 28 of the 1980 Act, which extends the limitation period in cases where a potential claimant is under a disability, was amended by the 1987 Act by inserting a subsection (7). That subsection, insofar as material for this appeal provides:
"(7) If the action is one to which section 11A of this Act applies …subsection (1) above-
(a) shall not apply to the time limit presented by subsection (3) of the said section 11A …; and
(b) in relation to any other time limit prescribed by this Act shall have effect as if for the words "six years" there were substituted the words "three years"."
It is clear that the extension of the limitation period in cases of disability does not apply to the 10 year period prescribed by section 11A(3). Section 32 of the 1980 Act, dealing with the postponement of the running of the limitation period in cases of fraud, concealment or mistake, was also amended by the 1987 Act. Section 32(4A) provides that section 32(1) shall not apply "to the time limit prescribed by section 11A(3)."
The 1987 Act also amended section 33 of the 1980 Act, which is the provision empowering the court to disapply the normal time limit for actions in respect of personal injuries or death if it would be equitable to allow the action to proceed. The amendment, contained in section 33 (1A), states:
"The court shall not under this section disapply-
(a) subsection (3) of section 11A;"
Again, the 10 year period applicable to claims under Part 1 of the 1987 Act cannot be disapplied under section 33 of the 1980 Act.
Section 35 of the 1980 Act was not amended by the 1987 Act. It is central to the present appeal. It has a sidenote, stating "New claims in pending actions: rules of court", and the relevant provisions of the section then read as follows:
"(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced-
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either-
(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party; ……
(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 within subsection (1)(b) above, other than an original set-off or counterclaim, 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.
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following-
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.
(6) The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either-
(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or
(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action."
The substitution of a new party "after the expiry of any time limit under this Act" (section 35(3)) may only be allowed, therefore, either where it comes within section 33 or where rules of court so provide. The power to disapply a...
To continue reading
Request your trial
-
O'Byrne v Sanofi Pasteur Ltd and Another (Case C-127/04)
...3 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 peri......
-
TRW Pensions Trust Ltd v Indesit Company Polska Sp. Z.o.o
...to the name of the party, applying the Sardinia Sulcis test. [35] This is confirmed by the decision of the Court of Appeal in Horne-Roberts v SmithKline Beecham plc [2002] 1 WLR 1662. In that case the claimant initially sued Merck believing it to be the manufacturer of a vaccine which the ......
-
Various Claimants v Barclays Bank Plc
...Sardinia Sulcis test continued to be applied despite the change from one to two rules and the different language employed. In Horne-Roberts v SmithKline Beecham plc [2002] 1 WLR 1662 the claimant applied for permission to substitute one pharmaceutical company for another as the defendant i......
-
Lockheed Martin Corporation v Willis Group Ltd
...Ord 20, r 5 language (in a CPR 19.5 case) and is confined to commenting variously on the situation in each case. Thus as to Horne-Roberts v. SmithKline Beecham plc [2001] EWCA Civ 2006, [2002] 1 WLR 1662, where the claimant first sued Merck and then successfully sought to amend to substitu......
-
Extension Of Manufacturers' Product Liability Exposure After 10-Year Cut-Off Period
...of Appeal considered itself bound by, and decided to follow, its own previous 2001 decision in Horne-Roberts v SmithKline Beecham Plc [2001] EWCA Civ 2006. This case also examined the apparent conflict between the Directive and s.35 of the Act in relation to very similar facts arising in co......