Case Name:

Horne-Roberts v SmithKline Beecham plc and another [2001] EWCA Civ 2006

Country:

UK (England)

Court:

Court of Appeal, 18 December 2001

Topics/Issues:

Limitation

Legislation referred:

Consumer Protection Act 1987

Product Liability Directive 85/374/EEC

Cases Referred:

Facts:

The Claimant was born in 1989 and was vaccinated with the MMR vaccine in 1990. He claimed that the vaccine had caused him to become autistic. MMR vaccines were at the material time manufactured by Smithkline, Merck and Aventis and the manufacturer of the vaccine could be identified by reference to the relevant batch number. Although the Claimant's vaccine was a SmithKline product, as a result of an error his solicitors issued proceedings in 1999 against Merck as the defendant. When the error was identified a year later, more than ten years had passed from the date of the vaccination (which it was accepted was the relevant date for the purposes of section 11A(3) of the Limitation Act 1980) and fresh proceedings could not be issued against SmithKline. The Claimant's solicitors applied to substitute SmithKline as the defendant. Bell J granted the application, holding that the court could allow substitution under section 35 of the 1980 Act and CPR r 19.5, and that there had been a mistake of the claimant's of the type covered by section 35(6) and CPR r 19.5(3)(a), which allow the courts to substitute a new party where the intention was to bring an action against a party satisfying a particular description specific to the case. Smithkline appealed.

Legal Questions:

(1) Whether the ten-year long stop imposed by section 11A(3) of the Limitation Act 1980 in respect of product liability claims was a period of limitation under CPR r 19.5(1)

(2) Whether the mistake was within the scope of section 35(6)(a) of the Limitation Act 1980 and CPR r. 19.5.

Decisions:

(1) Whether the ten-year long stop imposed by section 11A(3) of the Limitation Act 1980 in respect of product liability claims was a period of limitation under CPR r 19.5(1)

The court held that the ten-year long-stop under section 11A(3) (introduced by the CPA) was a time limit for the purposes of the 1980 Act. The Directive required "rights" conferred pursuant to the Directive to be extinguished after ten years, but was not in absolute terms where proceedings had been issued. The Directive did not deal explicitly with the situation where proceedings had been issued but where there had been a mistake of the kind in the present case.

(2) Whether the mistake was within the scope of section 35(6)(a) of the Limitation Act 1980 and CPR r. 19.5.

The court held that it was clear that section 35(6)(a) went beyond merely correcting a misnomer since it was a provision which expressly allowed the substitution of a new party for the original named party. The test was whether the intended defendant could be identified by reference to a description which was specific to the particular case. The claimant came within section 35(6) because he had always intended to sue the manufacturer of the relevant batch of vaccine but had wrongly named the manufacturer as Merck.

Original text:

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