OB v Aventis
OB in the Supreme Court
The Supreme Court has handed down its Judgment in OB v Aventis Pasteur SA  UKSC 23. Prashant Popat QC, the Chairman of Chambers’ Product Liability Group, is instructed on behalf of Aventis.
Background: The claim in the national courts arises out of a vaccine administered to the Claimant on 3rd November 1992. The Claimant alleges that the vaccine was defective within the meaning of the Consumer Protection Act 1987 (‘CPA’) and caused him injury.
The Directive: The CPA implements Council Directive 85/374/EEC of 25 July 1985 concerning liability for defective products (“the Directive”). Two provisions of the Directive are of particular relevance in this case. Firstly, Article 3 limits the categories of persons that can be liable under the Directive. The Directive imposes strict liability upon the ‘producer’ of a product. Article 3 defines the ‘producer’ as the manufacturer of the product (Art 3(1)). Article 3(3) provides that where the producer cannot be identified the supplier is to be treated as the producer unless he informs the injured party of the identity of the producer within a reasonable time. Secondly, Article 11 introduces a temporal scope to the Directive. Article 11 provides for a ten year long stop which requires Member States to implement a provision so that an injured persons rights “shall be extinguished upon the expiry of the 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.”
The Limitation Act 1980: Section 11A of the Limitation Act was added by the CPA in order to give effect to the time limits required by the Directive. Section 11A(3) provides that “An action to which this section applies shall not be brought after the expiration of the period of ten years from the relevant time …” Pursuant to section 35 of the Limitation Act, rules of court may allow a new claim involving the addition or substitution of a new party to be made in the course of any action after the expiry of “any time limit under this Act” if specified conditions are met. In Horne-Roberts v SmithKline Beecham Plc  1 WLR 1662, the Court of Appeal held that the 10 year period inserted into the Limitation Act at section 11A is a “time limit under this Act” within the meaning of section 35, so that section 35 applies to an application to substitute a new party as a defendant after the expiry of the 10 year period. Rules of court made under section 35 of the Limitation Act are contained in CPR r.19.5. Where the court has power under section 35 and CPR r.19.5 to order substitution of a new party, it is in the discretion of the court whether to make such an order.
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