Europa Directive 85/374/EEC – Liability for defective products Articles 3 and 11 Mistake in the classification of ‘producer’ Judicial proceedings – Application for substitution of the producer for the original defendant Expiry of the limitation period.
(Grand Chamber of the Court of Justice) The claimant sought damages after consuming a defective medicine supplied by the company. In his action, he sought to amend his pleadings to name the company, having sued the wrong party.
Held: The action was for a claim having its origins in European law which would not give the same discretion as would be given in an English court to add a party after the expiration of the limitation period. However, here the proper defendant was a wholly owned subsidiary of the party named in the original proceedings, and the defendant must have known this, and the court was free, using article 3(3) of the Directive, to treat the actual defendant as the producer liable at law.
‘Article 11 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products must be interpreted as precluding national legislation, which allows the substitution of one defendant for another during proceedings, from being applied in a way which permits a ‘producer’, within the meaning of Article 3 of that directive, to be sued, after the expiry of the period prescribed by that article, as defendant in proceedings brought within that period against another person.’
V Skouris, P and Judges A. Tizzano, J. N. Cunha Rodrigues, K. Lenaerts, E. Levits, C. W. A. Timmermans, A. Rosas, A Borg Barthet, M. Ilesic, J. Malenovsk}, U. Lohmus, AO Caoimh and J-J Kasel
C-358/08, [2009] EUECJ C-358/08, Times 09-Dec-2009
Bailii
Consumer Protection Act 1987, Directive 85/374 3(3)
European
Citing:
At ECJ (1) – Declan O’Byrne v Sanofi Pasteur MSD Ltd, formerly Aventis Pasteur MSD Ltd, Sanofi Pasteur SA ECJ 9-Feb-2006
ECJ Directive 85/374/EEC – Liability for defective products – Definition of -putting into circulation- of the product – Supply by the producer to a wholly owned subsidiary. . .
At HL – OB v Aventis Pasteur SA HL 11-Jun-2008
The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against . .
See Also – O’Byrne v Aventis Pasteur MSD Ltd QBD 20-Oct-2006
The claimant sought damages under the 1967 Act asserting injury from a drug sold by the defendant. Proceedings had been mistakenly commenced against Aventis Pasteur MSD Ltd within the limitation period, but outside the limitation period, it was . .
At CA – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
The claimant had made a mistake in naming the defendant company, but had intended the company which it now requested the court to substitute as defendant. The limitation period had expired.
Held: The substitution was necessary to decide the . .
At CA (2) – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .
Cited by:
At ECJ (2) – O’Byrne v Aventis Pasteur Sa SC 26-May-2010
The claimant wished to claim damages after suffering serious injury as a child having been vaccinated with a drug manufactured by a defendant (APMSD). The defendant had relied on a defence saying that the limitation period under the Directive was 10 . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Consumer, Limitation
Updated: 02 November 2021; Ref: scu.384094