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Substitution allowed after limitation period

8 December 2009

Claimants in defective products cases can substitute defendants if there has been a mistake as to the appropriate party to sue, even where the ten-year limitation period set out in the product liability directive has expired, the European Court of Justice has ruled.

Although the limitation period was strict, there where circumstances where substitution could take place after the expiry date where the claim involved a parent company and a subsidiary, the court held in case C-358/08 Aventis Pasteur v O’Byrne. In particular, the Luxembourg judges said, it should be possible to substitute the producer for a wholly-owned subsidiary if that producer determined the putting into circulation of the product in question.

In addition, where the claimant was not “reasonably able to identify the producer of that product before exercising his rights against the supplier of that product, that supplier must be treated as a ‘producer’ […] if it did not inform the injured person, on its own initiative and promptly, of the identity of the producer or its own supplier”.

The case started in November 2000 when Declan O’Byrne’s parents claimed that the child had suffered severe brain damage after being treated with a vaccine produced by Aventis Pasteur. They initially sued the pharmaceutical giant’s UK subsidiary, but it resisted the claim, arguing that the correct defendant under the directive should be its parent company.

In due course, the claimants obtained an order for a substitution of defendant, but, at this stage, Aventis said the claim had become time-barred. The Court of Appeal allowed the substitution in October 2007, but the House of Lords referred the matter to the ECJ.

The case will now return to the Supreme Court.

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