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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> O'Byrne v Aventis Pasteur Msd Ltd. [2006] EWHC 2562 (QB) (20 October 2006) URL: http://www.bailii.org/ew/cases/EWHC/QB/2006/2562.html Cite as: [2006] EWHC 2562 (QB), (2006) 92 BMLR 130, [2007] 1 WLR 757, [2007] WLR 757 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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MASTER DECLAN O'BYRNE |
Claimant |
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- and - |
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AVENTIS PASTEUR MSD LTD |
Defendant |
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-and- |
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AVENTIS PASTEUR SA |
Proposed Defendant |
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George Leggatt QC and Prashant Popat (instructed by Arnold & Porter (UK) LLP) for the Defendant and the Proposed Defendant
Hearing dates: 13 October 2006
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Crown Copyright ©
Mr. Justice Teare :
(4) Rules of court may provide for allowing a new claim to which subsection (3) applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.(5) The conditions referred to in subsection (4) above are the following-
(a) ………….(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.(6) The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either –
(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or(b) …………..
"When an action is brought against a company mistakenly considered to be the producer of a product whereas, in reality, it was manufactured by another company, it is as a rule for national law to determine the conditions in accordance with which one party may be substituted for another in the context of such an action. A national court examining the conditions governing such a substitution must, however, ensure that due regard is had to the personal scope of Directive 85/374, as established by Articles 1 and 3 thereof."
The decision to name APMD as defendant
"1. The Claimant's claim is for damages for personal injuries, loss, damage, inconvenience and distress suffered as a result of vaccination with a HIB vaccine on or around 3rd day of November 1992.2. The Claimant alleges that the vaccine administered to him on 3 November 1992 was manufactured and/or produced by the Defendant, being of a type or brand of vaccine known to be manufactured by and registered in the UK by/to the Defendant.
3. It is further alleged that the vaccine administered to the Claimant on 3 November 1992 is defective within the meaning of the Consumer Protection Act 1987 and if manufactured or produced by the Defendant, the Defendant is liable under the terms of that Act for the said injury, damage and loss sustained by the Claimant.
4. Alternatively, the said injury and damage sustained by the Claimant was caused by the negligence and/or breach of the statutory duty of the Defendant in the research, manufacture, testing and/or development of the said vaccine and/or in the processing, compilation and presentation of the data obtained thereby and/or in their submissions to the relevant licensing authorities and/or in the sale, supply and marketing and post product licensing surveillance and evaluation of the said vaccine and/or by the negligent misstatement of the Defendant in the marketing, advertising and other promotion for the sale and prescription of the said vaccine."
The response of APMSD
The response of the Claimant
"1. The claimant was born on the 2nd November 1991. He brings this action by his mother and Litigation Friend Kerry McLoughlin.2. The defendant is a pharmaceutical company that at all material times was engaged or held itself out as engaged in the production, importation and supply of vaccines, including the Haemophius Influenza Type B vaccine (HIB).
3. On the 3rd November 1992 the claimant was vaccinated with a HIB vaccine.
4. The vaccine was produced by the defendant, alternatively was imported by the defendant, or alternatively the defendant held itself out as being the producer of the vaccine.
5. Alternatively, the defendant is, pursuant to section 2(3) of the Consumer Protection Act 1987, responsible for any defect in the vaccine. The defendant was a supplier of the vaccine within the meaning of section 2(3) of the Act and was requested by solicitors acting for the claimant to provide the identity of the producer of the vaccine. It has failed within a reasonable period to comply with that request.
6. Following vaccination with the vaccine the claimant developed an encephalopathy leading to permanent neurological damage.
7.It is the claimant's case that the encephalopathy was caused by the vaccine."
Attempts to sue APSA
APSA's submission that there is no jurisdiction to substitute
"Is the addition of company A or C "necessary" (19.5(2)(a))? That depends on whether the court is satisfied that "the new claim is to be substituted for a party who was named in the claim form in mistake for the new party".
Discretion
i) It was probable that when APMSD was sued within the 10 year period APSA was made aware of that fact. They were related companies and no evidence has been filed by APSA suggesting that it only learnt of the claim after the expiry of the 10 year period.ii) APSA must have anticipated that the Claimant, once the mistake had been pointed out, would seek to "regularise" the proceedings by substituting APSA for APMSD.
iii) In June 2002, before the 10 year period had expired, APSA was aware that the Claimant wished to join APSA to the proceedings.
iv) Substitution of APSA for APMSD can cause no prejudice to APSA save for the fact that APSA would be deprived of a limitation defence but that, following the approach of the Court of Appeal in Morgan Est, is not to be regarded as prejudice.
v) The fact that the reason for the Claimant's solicitors' mistake in suing APMSD was or may have been their failure to examine the product literature and to ask APMSD before action whether they were the manufacturer ought not to be given much if any weight because, as was said in by the Court of Appeal in Morgan Est, the jurisdiction is to put right that which will generally have been an error of the Claimant's own making.
vi) If the conduct of the Claimant is to be given weight then the Court should take into account a number of matters concerning the conduct of APSA, in particular APSA's refusal to agree to joinder before expiry of the 10 year time limit when there can have been no reason for such a refusal.
i) Where a person is mistakenly sued as defendant and the claimant, when the mistake is subsequently pointed out, decides to proceed against the original defendant permission to substitute should rarely if ever be given.ii) Where the mistake was entirely avoidable and arises from the failure to follow any form of pre-action protocol permission to substitute should be refused. In this regard reliance was placed on the decision of the Court of Appeal in Martin Kaisary and the Royal Free Hospital Trust [2005] EWCA Civ 594.
iii) Regard should be had to the prejudice of losing a limitation defence when that loss is caused not by the Claimant's mistake but by the Claimant's informed choice to continue to proceed against the original defendant.
i) It is likely that APSA was made aware of the Claimant's intention to sue the producer or manufacturer of the vaccine within the 10 year limitation period shortly after proceedings were served on APMSD. That inference can be drawn from the circumstance that APSA and APMSD are and were related companies and that the commencement of an action by the Claimant alleging a defect in vaccine manufactured by APSA would be a matter of such importance to the group of companies that it is likely that APMSD would report the action to APSA. There was no evidence that APSA only learnt of the claim after the expiry of the 10 year period and the submission that APSA knew of the claim before the expiry of that period was not contradicted by Counsel for APSA.ii) It is likely that APSA considered that the Claimant, once the mistake had been pointed out, would take steps to substitute APSA for APMSD. That is because substitution is one of the ways in which the Claimant's mistake could be remedied. APSA certainly knew in June 2002 that the Claimant intended to remedy the mistake in another way, namely, by joining APMSD as a second defendant.
iii) Whilst the original mistake can be said to have been the result of the failure of the Claimant's solicitors to follow any form of pre-action protocol I do not attach, in the context of this application, much weight to that. Whilst the failure of the solicitors to write to APMSD before commencing the action is a serious failure mistakes which give rise to an application to substitute will often be the result of a failure of some sort and the jurisdiction exists to remedy such mistakes. In this regard I follow the approach of Jacob LJ in Morgan Est at paragraphs 40 and 47 rather than the obiter dicta of Smith LJ in Martin at paragraph 17 since the former case concerned an application for substitution and the latter case did not.
iv) Whilst an application to substitute could have been made after April 2002 and before the 10 year limitation expired it was not made then because the Claimant wished to sue both APSA and APMSD. That decision was reasonable. Indeed it was not criticised by Counsel for APSA.
v) The Claimant's solicitors, on being informed of their mistake, did not determine to proceed against APMSD alone . They decided to join APSA to the proceedings against APMSD.
vi) Whilst the Claimant's solicitors must have known in the period April to November 2002 that there was a serious risk that the 10 year period might expire some time before November 2002 and it can be said that they did not act with urgency in that period yet it can also be said that one of the reasons why the application to join was not heard until 4 October 2002 was because of APSA's refusal to agree to joinder and to APSA's refusal to instruct its solicitors to accept service.
vii) Moreover, the delay in making the application to substitute until March 2003 has caused no prejudice to APSA. Nor is any alleged, save that, if the application is allowed, APSA will be deprived of a limitation defence. That prejudice flows from the initial mistake, even though it might have been avoided had the Claimant acted differently. It is too narrow a view of the facts to regard that prejudice as having been caused by the reasonable decisions of the Claimant's solicitors to continue to sue APMSD and to join APSA taken in the wake of their mistake being revealed to them, rather than by their mistake. For these reasons I consider it appropriate to follow the approach of Jacob LJ in Morgan Est at paragraph 42 (although I recognise that he was not dealing with a case where the claimant was informed of his mistake and yet continued to proceed against the original defendant.)
viii) Although this substitution is being made 4 years after the 10 year limitation period expired the application was made in March 2003 once it was known that APSA would challenge the joinder order. The delay thereafter has been caused by the excursion to the ECJ.