The Supreme Court handed down judgment in the case of OB v Aventis Pasteur SA [2010] UKSC 23 on the 26th May 2010. The case concerned an allegation of defects in a product which resulted in brain damage and therefore gave rise to an action under s. 2 of the Consumer Protection Act 1987. The issue in the case concerned the possible substitution of a defendant to the action.

The respondent had been vaccinated on 3 November 1992 with the product, which it was alleged caused brain damage. The vaccine had been manufactured by a French company, Aventis Pasteur SA (the appellant); it was sent as part of a consignment on 18 September 1992 to Aventis Pasteur MSD Ltd (APMSD), an English company, at the relevant time a wholly owned subsidiary and distributor of the parent company’s product.

Proceedings were issued against APMSD under s.2 of the Consumer Protection Act 1987. APMSD highlighted that it was only the distributor; APMSD identified the appellant as the producer in 2002. In its defence the appellant argued that any action against it was time-barred. The appellant relied on s. 11 of the Limitation Act 1980, and Article 11 of Council Directive 85/374/EEC (the Directive).

The respondent applied for a substitution of defendant to its original claim. Following a reference from the ECJ, the High Court determined that substitution could occur on the ground that a mistake had been made in the action brought before the expiration of the limitation period. The Court of Appeal dismissed the appellant’s appeal. Considering the reference by the ECJ to mean that national law can treat proceedings against the producer but which use the wrong name to be proceedings against the producer, the House of Lords also dismissed the appeal. A divergence in the views of the Committee resulted in a second ECJ reference.

This second ECJ reference stated that in line with Article 11 of the Directive, a producer cannot be sued after ten years following the product being put into circulation, if it had not been sued within the ten year period. The respondent attempted to argue that nonetheless his case came within a qualification within the ECJ guidance that a national court could effect substitution where the two entities were so similar they could be regarded as one for the purposes of Article 3(1) of the Directive.

Considering the ECJ reference, the court determined the relevant question to be whether the appellant controlled APMSD and was responsible for deciding when the product was put into circulation. Acknowledging that the company being a wholly-owned subsidiary was not determinative, the court highlighted other relevant factors. Despite this guidance, the court determined that the ECJ had not intended to depart from its original point that Article 11 prevented national law from enabling the suit of a producer outside of the ten year limitation period. Allowing the appeal, the court set aside the order of the High Court.