Extension Of Manufacturers' Product Liability Exposure After 10-Year Cut-Off Period

Summary

In the recent Court of Appeal case of O'Byrne v Aventis Pasteur SA [2007] EWCA Civ 939, Aventis Pasteur SA (the proposed defendant) appealed against an order under s.35 Limitation Act 1980 that it be substituted for the original defendant, which was a secondary supplier. The Court confirmed that s.35 is capable of applying where the 10-year final cut-off period, for claimants to enforce their rights under the Product Liability Directive 85/374/EC, has expired. This decision therefore confirms an earlier Court of Appeal decision in 2001 that a substituted defendant's ability to defend a product liability action commenced before the English Courts on grounds of limitation can be ineffective because of the Courts' powers to retrospectively substitute one defendant for another defendant, mistakenly named originally by the claimant. This decision therefore erodes the legal certainty intended to be provided by the 10-year cut-off period under the Directive.

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Summary

In the recent Court of Appeal case of O'Byrne v Aventis Pasteur SA [2007] EWCA Civ 939, Aventis Pasteur SA (the proposed defendant) appealed against an order under s.35 Limitation Act 1980 that it be substituted for the original defendant, which was a secondary supplier. The Court confirmed that s.35 is capable of applying where the 10-year final cut-off period, for claimants to enforce their rights under the Product Liability Directive 85/374/EC, has expired. This decision therefore confirms an earlier Court of Appeal decision in 2001 that a substituted defendant's ability to defend a product liability action commenced before the English Courts on grounds of limitation can be ineffective because of the Courts' powers to retrospectively substitute one defendant for another defendant, mistakenly named originally by the claimant. This decision therefore erodes the legal certainty intended to be provided by the 10-year cut-off period under the Directive.

Facts

Mr O'Byrne suffered severe brain damage when he was one year old after he had been vaccinated with two doses of anti-haemophilius vaccine by 3 November 1992. In early November 2000, he brought an action under the Consumer Protection Act 1987 (CPA) against Aventis Pasteur MSD Limited (APMSD), in the belief that it was the manufacturer (producer) of the vaccine, alleging that his brain damage was caused by the vaccine. In August 2001 the claimant served particulars of his claim additionally alleging in the alternative that APMSD had caused him injury through its negligence, breach of statutory duty and/or negligent misstatement in connection with the marketing of the vaccine, amongst other matters.

In November 2001 APMSD served a defence which stated that it was the distributor of the vaccine, not the manufacturer. In other words, that it was not a producer but rather a secondary supplier of the vaccine within the scheme of the Product Liability Directive 85/374/EEC (the Directive), which is implemented under English law by the CPA. In April 2002 it also informed the claimant that the manufacturer was Aventis Pasteur SA (APSA). APMSD's defence of the CPA claim was therefore based upon the argument that the claimant had been informed of the identity of the producer and that APMSD, as a secondary supplier, had not put the product into circulation. Under the scheme of the Directive secondary suppliers do not have liability in such circumstances.

After separate proceedings commenced by the claimant against APSA on 7 October 2002 had failed on the ground that they had been started more than 10 years after the product had been put into circulation by APSA (which was believed to be on...