The Court of Appeal has held in SmithKline Beecham plc & anr v Horne-Roberts (on appeal from Horne-Roberts v Merck and Co Inc) [2001] EWCA CIV 2006 that a new defendant can be substituted for an existing defendant in a strict product liability claim despite the fact that the substitution is outside the 10 year cut-off period provided for in article 11 of Directive 85/374/EEC.
A particular claimant in the MMR group litigation had intended to sue the manufacturer of the vaccine that he received. Acting on the basis of guidance notes provided to enable them to identify which of three pharmaceutical companies manufactured specific vaccines with different batch numbers, his solicitors correctly identified the batch number but mistakenly sued Merck instead of SmithKline Beecham. The court permitted substitution of SmithKline Beecham for Merck despite the fact that the application was made after the expiry of the 10 year period specified for the expiry of rights under the Directive, as implemented into English law by section 11A of the Limitation Act 1980, pursuant to the Consumer Protection Act 1987.
The decision was based on three aspects of English law. First, section 35 of the Limitation Act 1980 specifies that any new claim which comprises additional substitution of a new party shall be deemed to be a separate action and to have been commenced on the same date as the original action. Part 19.5 of the Civil Procedure Rules permits the court to substitute a party only if the relevant limitation period was current when the proceedings were started, and the substitution is necessary, on the basis that it will only be necessary if, inter alia, the court is satisfied that the new party is to be substituted for a party who is named in the claim form in mistake for the new party.
The court saw no distinction under English law between provisions dealing with periods of limitation and the 10 year extinguishment of rights, so it considered that the 10 year long-stop is a “time limit for the purposes of section 35(3).
On the basis of previous authority,[1] the Court of Appeal held that the basic test under section 35(6) and CPR 19.5 was whether the claimant intended to sue a defendant by reference to a particular description, such as in this case the manufacturer of the identified vaccine. The Court of Appeal recognised reluctance in permitting substitution of a new defendant unconnected with the original defendant and unaware of the claim until after the expiry of the limitation period, but considered that any potential injustice can be successfully avoided by the exercise of the court’s discretion to extend the limitation period under section 35, and the court noted that there was no appeal against the exercise by the first instance judge of his discretion against SmithKline Beecham.
Nevertheless, this decision is questionable as a matter of Community law as it clearly permits a substitution of a defendant who has no notice of the claim after the 10 year period, and this is clearly inconsistent with the operation of a 10 year cut-off as provided for in the Directive, which does not include any discretionary power to amend any limitation period or the 10 year expiration of rights.
For further information please contact Chris Hodges by telephone on +44(0)20 7367 2738 or by e-mail at christopher.hodges@cms-cmck.com
[1] Evans Limited v Charrington & Co Limited [1983] 1 QB 810, CA; Gregson v Channel 4 Television Corporation Court of Appeal unreported, 11 July 2000; The “Sardinia Sulchis and “A L Tawwab [1991] 1 Lloyds LR 201, CA.
