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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smithkline Beecham Plc. & Anor v Horne-roberts [2001] EWCA Civ 2006 (18th December, 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2006.html
Cite as: [2002] WLR 1662, (2002) 65 BMLR 79, [2002] CP Rep 20, [2001] EWCA Civ 2006, [2002] 1 WLR 1662

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Smithkline Beecham Plc. & Anor v Horne-roberts [2001] EWCA Civ 2006 (18th December, 2001)

Neutral Citation Number: [2001] EWCA Civ 2006
Case No: A2/2001/0611

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUENS BENCH DIVISION (MR JUSTICE BELL)
Royal Courts of Justice
Strand,
London, WC2A 2LL
18th December 2001

B e f o r e :

THE PRESIDENT
LADY JUSTICE HALE
and
LORD JUSTICE KEENE
____________________

Smithkline Beecham plc.
Smithkline and French Laboratories Limited
Appellant
- and -

Horne-Roberts

Respondent
 ____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Michael Spencer Q.C. and Prashant Popat (instructed by Davies Arnold Cooper, London EC4Y 8DD for the Appellant)
Augustus Ullstein Q.C. (instructed by Alexander Harris of Altrincham WA14 2DW for the Respondent)
____________________

HTML VERSION OF JUDGMENT
(AS APPROVED BY THE COURT)
 ____________________

Crown Copyright ©

    LORD JUSTICE KEENE:

  1. This appeal, against a decision of Bell J. dated 26 February 2001, raises issues of some importance about the Limitation Act 1980 (“the 1980 Act”) as amended by the Consumer Protection Act 1987 (“the 1987 Act”). In particular it concerns the circumstances (if any) in which the court has power to allow the substitution of a new party for a party originally named in the action once the “long-stop” period of 10 years referred to in section 11A(3) of the 1980 Act has expired.

  2. The facts of the case are not complicated. The claimant was born on 29 June 1989. On 20 June 1990 he was vaccinated with a vaccine against measles, mumps and rubella, commonly known as an MMR vaccine. It is his case that, due to defects in the vaccine, this led to him becoming autistic. His claim is one of a large number of claims made on behalf of children who allege that they have been injured by MMR vaccine.

  3. Such vaccines were, at the material time, manufactured by three pharmaceutical companies, namely Smithkline Beecham plc/Smith Kline and French Laboratories Limited (together “SK”), Merck and Co. Inc. (“Merck”) and Aventis Pasteur MSD Limited. The solicitors acting for the claimant had their own guidance notes to enable them to identify the manufacturer of the vaccine used in any individual case by reference to the batch number. The person within that firm of solicitors correctly identified the batch number of the vaccine as 108A41A. That should have indicated to him that it was an SK product. However, as a result of some mistake, he attributed it to Merck. Consequently, when proceedings were issued on 25 August 1999, the claim was brought against Merck as the defendant.

  4. The error only came to light almost one year later when, on 22 August 2000, Merck’s solicitors wrote to the claimant’s solicitors to say that the batch number was most unlikely to correspond to a Merck batch number. Only then did the claimant’s solicitors realise that the manufacturer of the vaccine was SK.

  5. It has been agreed that, for the purpose of the application now under appeal, the date of vaccination is to be treated as the “relevant time” from which the period of 10 years specified in section 11A of the 1980 Act runs. But even on that basis more than 10 years had passed by the time the error as to the manufacturer had been appreciated. Fresh proceedings could not have been commenced against SK. However, on 12 October 2000 the claimant’s solicitors applied to substitute SK for Merck as the defendant in the proceedings already issued.

  6. The claim in those proceedings is brought under Part 1 of the 1987 Act, which seeks to implement Directive 85/374/EC (“the Directive”) on liability for defective products. The 1987 Act made various persons, including the producer of the product, liable for any damage caused wholly or partly by a defect in the product, the liability being strict though subject to a number of possible defences set out in section 4. Section 6(6) amended the 1980 Act by making the amendments set out in Schedule 1. By that method it inserted a new section 11A into the 1980 Act and amended sections 12(1), 14, 28, 32 and 33 of that Act.

  7. Section 11A of the 1980 Act, insofar as material for present purposes, provides:

    8. “(1) This section shall apply to an action for damages by virtue of any provision of Part1 of the Consumer Protection Act 1987.

    (2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

    (3) An action to which this section applies shall not be brought after the expiration of the period of ten years from the relevant time, within the meaning of section 4 of the said Act 1987; and this subsection shall operate to extinguish a right of action and shall do so whether or not that right of action had accrued, or time under the following provisions of this Act had begun to run, at the end of the said period of ten years.

    (4) Subject to subsection (5) below, an action to which this section applies in which the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to the plaintiff or any other person or loss of or damage to any property, shall not be brought after the expiration of the period of three years from which ever is the later of –

    (a) the date on which the cause of action accrued; and

    (b) the date of knowledge of the injured person or, in the case of loss of or damage to property, the date of knowledge of the plaintiff or (if earlier) of any person in whom his cause of action was previously vested.”

  8. Subsection (5) is not in fact relevant to the present case. In summary, therefore, section 11A(2) disapplies any of the preceding time limits, so far as an action for damages under Part 1 of the 1987 Act is concerned, and new time limits are imposed by subsections (3) and (4).

  9. Section 28 of the 1980 Act, which extends the limitation period in cases where a potential claimant is under a disability, was amended by the 1987 Act by inserting a subsection (7). That subsection, insofar as material for this appeal provides:

    10. “(7) If the action is one to which section 11A of this Act applies …subsection (1) above-

    (a) shall not apply to the time limit presented by subsection (3) of the said section 11A …; and

    (b) in relation to any other time limit prescribed by this Act shall have effect as if for the words “six years” there were substituted the words “three years”.”

    It is clear that the extension of the limitation period in cases of disability does not apply to the 10 year period prescribed by section 11A(3). Section 32 of the 1980 Act, dealing with the postponement of the running of the limitation period in cases of fraud, concealment or mistake, was also amended by the 1987 Act. Section 32(4A) provides that section 32(1) shall not apply “to the time limit prescribed by section 11A(3).”

  10. The 1987 Act also amended section 33 of the 1980 Act, which is the provision empowering the court to disapply the normal time limit for actions in respect of personal injuries or death if it would be equitable to allow the action to proceed. The amendment, contained in section 33 (1A), states:

    11. “The court shall not under this section disapply-

    (a) subsection (3) of section 11A;”

    Again, the 10 year period applicable to claims under Part 1 of the 1987 Act cannot be disapplied under section 33 of the 1980 Act.

  11. Section 35 of the 1980 Act was not amended by the 1987 Act. It is central to the present appeal. It has a sidenote, stating “New claims in pending actions: rules of court”, and the relevant provisions of the section then read as follows:

    12. “(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced-

    (a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

    (b) in the case of any other new claim, on the same date as the original action.

    (2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either-

    (a) the addition or substitution of a new cause of action; or

    (b) the addition or substitution of a new party; ……

    (3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

    (4) Rules of court may provide for allowing a new claim to which subsection (3) above 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) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and

    (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) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action. ”

  12. The substitution of a new party “after the expiry of any time limit under this Act” (section 35(3)) may only be allowed, therefore, either where it comes within section 33 or where rules of court so provide. The power to disapply a time limit under section 33 does not allow a court to disapply the 10 year limit imposed by section 11A(3), and it follows that the only possible way in which section 35 could allow the 10 year limit on claims under the 1987 Act to be overridden would be if rules of court so provide. The condition set out in section 35(5)(b), that the substitution of the new party is necessary for the determination of the original action, construed in accordance with section 35(6), must also be met before the court has power to allow the substitution to be made.

  13. The relevant rule of court is now Civil Procedure Rules (“CPR”), Part 19.5, paragraph (2)(b) of which provides that

    14. “the court may … substitute a party only if-

    (a) the relevant limitation period was current when the proceedings were started; and

    (b) the … substitution is necessary.”

    Paragraph (3) of Part 19.5 provides that

    “The … substitution of a party is necessary only if the court is satisfied that-

    (a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party …”

  14. Before Bell J. three objections were raised by SK to the claimant’s application to substitute SK for Merck as the defendant. First, it was contended that section 35 and CPR 19.5, as properly interpreted, did not permit a court to allow such substitution after the 10 year period applicable in cases under the 1987 Act had expired. Secondly, it was argued that if there was such a power it did not exist in the present case because the mistake on the claimant’s part had not been of the type covered by section 35(6) and CPR 19.5. Thirdly, if the power did exist in the present case, the court should as a matter of its discretion not allow the substitution to be made.

  15. Bell J. found against SK on the first and second issues and decided to exercise his discretion in favour of the claimant’s application. There is no appeal against the way in which he exercised his discretion. This appeal is therefore concerned with the first two issues.

  16. On the first issue, the appellant SK contends that the 10 year “long-stop” imposed by section 11A(3) is not a “period of limitation” within the meaning of CPR 19.5(1), which provides:

    17. “This rule applies to a change of parties after the end of a period of limitation under –

    (a) The Limitation Act 1980 …”

  17. On behalf of SK, Mr Spencer, Q.C., emphasises that Part 1 of the 1987 Act, dealing with product liability, was enacted to give effect to the Directive, as can be seen from section 1(1) of that Act:

    18. “This part shall have effect for the purpose of making such provision as is necessary in order to comply with the product liability Directive and shall be construed accordingly.”

  18. The preamble to the Directive provides:

    19. “Whereas a uniform code of limitation for the bringing of action for compensation is in the interests of both of the injured person and of the producer;

    … Whereas products age in the course of time, higher safety standards have developed and the state of science and technology progresses; whereas, therefore, it would not be reasonable to make the producer liable for an unlimited period for the defectiveness of his products; whereas, therefore, liability should expire after a reasonable length of time, without prejudice to claims pending at law …”

  19. Those aims of the Directive are reflected in Articles 10 and 11. Article 10 provides:

    20. “1. Member States shall provide in their legislation that a limitation period of three years shall apply to proceedings for the recovery of damages as provided for in this Directive. The limitation period shall begin to run from the day on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.

    2. The laws of Member States regulating suspension or interruption of the limitation period shall not be affected by this Directive.”

    Article 11 states:

    “Member States shall provide in their legislation that the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.”

  20. Consequently, it is submitted, one can see that the Directive distinguishes between a 3 year limitation period on the one hand and the extinguishment of rights after a 10 year period on the other. Such extinguishment of rights is different from a limit on the time for bringing an action. Moreover, this distinction is observed in the 1980 Act as amended by the 1987 Act, since section 11A(3) provides both that an action shall not be brought after the expiration of 10 years and that:

    21. “this subsection shall operate to extinguish a right of action.”

  21. Mr. Spencer contends that section 35 of the 1980 Act must be construed so as to give effect to the Directive, including Article 11, or at least not so as to undermine or circumvent it. He recognises that Parliament chose to implement Article 11 by way of an amendment to the 1980 Act and that Parliament expressly excluded the 10 year long-stop from the operation of sections 28, 32 and 33 of the 1980 Act and did not do so in respect of section 35. But it is argued that sections 28, 32 and 33 were dealing with possible extensions of time, whereas section 35 was not. Reliance is also placed on the decision in Payabi –v- Armstel Shipping Corporation [1992] 1 Q.B. 907 where it was held that section 35 did not apply where a cause of action had been extinguished by a substantive time limit, such as that under the Hague Rules.

  22. Like Bell J., I recognise that these are powerful arguments. However, as Mr. Ullstein, Q.C., for the claimant/respondent stresses, Parliament chose to deal with time limits applicable to actions under the 1987 Act by way of amendments to the 1980 Act. It could have established a separate code for such actions, but did not do so. Indeed, the new section 11A containing the 10 year long-stop is inserted into the 1980 Act by means of a Schedule to the 1987 Act headed “Limitation of Actions under Part 1”.

  23. Section 35(3) enables a court to substitute a new party, where rules of court so provide, after the expiry of “any time limit under this Act”. On the face of it, the 10 year long-stop is a “time limit”: it is expressly referred to as such elsewhere in the 1980 Act. Section 28(7)(a) refers to “the time limit” prescribed by section 11A(3), and when section 32(4A) excludes the 10 year period from the operation of that section in cases of fraud, concealment or mistake, it expressly states that:

    24. “subsection (1) above shall not apply in relation to the time limit prescribed by section 11A(3) of this Act.” (Emphasis added)

  24. So when Parliament introduced section 11A(3) and the 10 year long-stop, it simultaneously and expressly referred to it as a time limit, the same wording as appears in section 35(3), with which this appeal is concerned. It would be very strange if those words were to be given some different meaning in section 35 from that clearly intended in section 28 and 32. Consequently, if section 35 were not applied to the 10 year long-stop, one would expect to see that expressly provided for.

  25. That is reinforced by the plain fact that Parliament repeatedly chose to amend the 1980 Act so as to exclude the 10 year long-stop from the operation of certain provisions. Sections 28, 32 and 33 were all amended so as to exclude expressly the 10 year long-stop from their scope. Yet no such exclusion was made in respect of section 35. That has to be seen as a conscious decision by the legislature not to disapply section 35. I should add that I do not see any distinction between the expression “time limit” in the 1980 Act and the phrase “period of limitation under … the Limitation Act 1980” as it appears in CPR 19.5(1). The two expressions, “time limit” and “period of limitation”, appear to be used interchangeably throughout the 1980 Act.

  26. It is right that the Directive by Article 11 requires the “rights” conferred pursuant to the Directive to be “extinguished” after 10 years, which accords with the reference in the preamble to “liability should expire”. But neither the Article nor the preamble is in absolute terms. Article 11 provides that the rights shall be extinguished “unless the injured person has in the meantime instituted proceedings against the producer”, and the recital in the preamble is qualified by the words “without prejudice to claims pending at law”. It is significant that section 35 of the 1980 Act, unlike sections 28, 32 and 33, only operates where proceedings have already been commenced within the applicable time limit, in other words where a claim is already “pending”, and in the case of a claim under the 1987 Act it would have to be a claim “against the producer”. The Directive does not explicitly deal with the situation to which section 35 relates, namely where proceedings have been instituted but where there has been a mistake of the kind referred to in that section. I therefore do not accept that to apply section 35 to the 10 year long-stop conflicts with the Directive’s terms or aims, especially when it is borne in mind that the court has a discretion under the section as to when it will allow a new party to be substituted.

  27. Section 11A(3) is not the only provision in the 1980 Act which provides for the “extinguishment” of a right of action. Section 3(2) deals with the conversion of chattels and provides for the title of the person with the cause of action to be extinguished after 6 years. Yet not only does that period seem to be regarded as a “time limit” but it was expressly said by Lord Greene M.R. in Beaman –v- A.R.T.S. Limited [1949] 1 KB 550, at 557, that section 3(2) in the Limitation Act 1939, the equivalent of the same subsection in the 1980 Act, was subject to section 26 of the 1939 Act, the equivalent of section 32 under the 1980 Act. So it is not to be assumed that sections 28, 32, 33 and 35 of the 1980 Act will not operate where the Act refers to the right of action or the title being extinguished after a period of time. That no doubt was why Parliament decided to make express provision for excluding the 10 year long-stop from the operation of sections 28, 32 and 33, since otherwise those provisions could well have applied to it. The absence of any such exclusion of the 10 year long-stop from the operation of section 35 has to be regarded as deliberate and significant.

  28. As for the decision in Payabi, that indicates that there exist time limits outside the scope of the 1980 Act and not derived from it. But the same is not true of the 10 year long-stop. That is achieved as part and parcel of the 1980 Act. I agree with Bell J.’s description of Parliament’s action in respect of the 10 year long-stop when at para. 32 he said that Parliament:

    29. “incorporated the ten year limit as part of the complex and inter-related provisions of that Act, which include the plain provisions of section 35.”

    It is not for the courts to exclude section 35 in such cases when Parliament has not decided to do so. In consequence, I am against the appellant on the first issue.

  29. The other issue concerns the meaning and scope of section 35(6) and CPR 19.5, and in particular the nature of the “mistake” which empowers the court, if it thinks fit, to allow the substitution of a new party. On this Mr. Spencer for the appellant submits that the wording of section 35(6)(a) indicates that only a mistake as to the name of a party will allow the court to order the substitution of a new party and that that was not the mistake made in the present case. The claimant in his original claim intended to sue Merck. His mistake was as to the identity of the manufacturer of the vaccine.

  30. It is submitted that, although the wording of CPR 19.5 is slightly different from that of section 35(6)(a), it is clearly intended to implement the latter provision and is governed by it. It follows that if it were to be given a wider meaning it would be ultra vires. CPR 19.5 and section 35(6)(a) exist in order to cover the situation where a mistake merely as to name has been made, so that if it had originally been the intention to sue SK but a typist had erroneously typed Merck, an order for substitution could be made. The intention of the party whose mistake it is is the crucial factor.

  31. Reliance is placed on two decisions. The first is Evans Limited –v- Charrington & Co Limited [1983] 1 Q.B. 810. This was a Court of Appeal decision concerned largely with the former Rules of the Supreme Court, Order 20, rule 5, but that rule, insofar as it dealt with the substitution of a new party, was intended to reflect the provisions of section 35(6)(a) of the 1980 Act. In dealing with amendments to writs or pleadings to correct the name of a party after the expiry of a limitation period, Order 20, rule 5(3) provided that such an amendment might be allowed even though the effect would be to substitute a new party:

    32. “if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, the case may be, intended to be sued.”

  32. In Evans Limited –v- Charrington and Co Limited, Evans Limited was the lessee of land originally from Charrington and Co. Limited but subsequently under a new lease from Bass Limited a company in the same group. In due course Evans Limited made an originating application to the county court for a new tenancy under the Landlord and Tenant Act 1954, naming Charrington and Co. Limited as the respondent. Subsequently, Evans Limited sought to substitute Bass Limited as the respondent but did so out of time under section 29(3) of the Landlord and Tenant Act 1954. The case turned on the scope of RSC Order 20, rule 5.

  33. Waller L.J. dissenting, regarded the mistake as being one as to identity, not one as to name, because Evans Limited’s solicitor thought that the landlord was Charringtons. On that basis he would not have allowed the substitution. Donaldson L.J. in a passage at p. 821 G – 822 A relied upon by Mr. Spencer said this:

    34. “In applying Ord. 20 r. 5 (3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances. In the instant case I have not the slightest difficulty in accepting Mr. Greenwood’s assertion that he intended to sue the relevant landlord under the Act. After all, he was responding on behalf of the lessee client to a notice to quit given on behalf of the landlord and it would have been surprising, to say the least, if he had thought that it was appropriate to respond by claiming a new lease from the managing agent or any other stranger to the landlord and tenant relationship. Accordingly I would conclude that he made a genuine mistake of a character to which Ord. 20, r. 5 (3) can apply. ”

  34. Griffiths L.J. also emphasised that it was the identity of the person intended to be sued that was vital. He added at page 825 F:

    35. “But in this case I have no doubt that the identity of the person intended to be sued was the current landlord, Bass.”

    If it had been pointed out to the applicant’s solicitor that the landlord was Bass, the solicitor would have replied:

    “I intend to proceed against the landlord; thank goodness you have pointed out my mistake. I must change the name to Bass (Holdings) Limited.”

  35. The other case referred to by the appellant is Gregson –v- Channel Four Television Corporation, Court of Appeal unreported, 11 July 2000. There a claim for libel had been issued against Channel Four Television Company Limited, a wholly owned subsidiary of Channel Four Television Corporation. The broadcaster of the programme was in fact the latter company. It was conceded by the defendants that this was a mistake as to the name of the defendant. In the light of that, the court held that CPR rule 17.4(3) enabled the amendment to be made and, as May L.J. put it at para. 13:

    36. “There is no need to travel on to r.19.5.”

  36. Nonetheless, the court did consider the relationship between CPR rule 17.4 (3) and rule 19.5. May L.J. said this at para. 18:

    37. “Rule 19.5 applies where the application is to substitute a new party for a party who was named in the claim form in mistake for the new party. By contrast, r 17.4(3) applies where the intended party was named in the claim form but there was a genuine mistake as to the name of the party and no one was misled. As Mr David Foskett QC, sitting as a Deputy High Court Judge, said in International Distillers and Vintners Ltd v Hillebrand and Others

    “Part 19.4 [now 19.5] deals with cases where the Claimant mistakenly names the wrong party as Defendant. Part 17.4. deals with cases where the Claimant misnames the Defendant.” ”

  37. Peter Gibson L.J. at para. 29 said this of the nature of the mistake contemplated by rule 19.5:

    38. “By comparison and contrast with r.17.4(3), that mistake is not a mere mistake as to a name such as causes no reasonable doubt as to the identity of the party in question but is something more fundamental which can only be cured if a new party is substituted. ”

  38. Mr. Spencer argues that in the present case the claimant did intend to sue Merck, because he believed that company to be the manufacturer of the product. This was more than a mistake as to name. Section 35(6)(a) is clearly intended to be restrictive and if it applies in the present case, no real restriction would operate.

  39. For my part, I can see that if one were approaching section 35(6)(a) free from authority, one might be tempted to see it as allowing no more than a change of name where, say, Peter Michael Jones has been named as the defendant whereas the true name of the defendant is Peter Martin Jones. The paragraph does place considerable emphasis on the word “name”. Yet even confining oneself to the wording of the paragraph, it is clear that it is intended to go beyond merely correcting a misnomer. It is, after all, a provision which expressly allows the substitution of a new party for the original named party. Almost by definition such substitution could be said to involve a change in the identity of the party. Thus in Evans Ltd., –v- Charrington and Co. Ltd., a different company was being substituted for the company originally being proceeded against. I can see the force of Waller L.J.’s point that the mistake in that case was not one as to name but as to identity. It is only if one adopts Griffiths L.J.’s approach and defines “identity” as meaning simply the landlord that one can say that there was no mistake as to identity.

  40. Not surprisingly the approach to be adopted to the construction of section 35(6)(a) is not free from authority, even though the cases often concentrate more on the wording of the rules of court implementing that provision than on the wording of the provision itself. A helpful analysis of the authorities as they then stood was provided by the Court of Appeal in The “Sardinia Sulcis” and “AL Tawwab” [1991] 1 Lloyds L.R. 201, in the judgment of Lloyd L.J. with whom Stocker L.J. and Sir George Waller agreed. At page 207, Lloyd L.J. said:

    41. “In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v. Harris Engineering the identity of the person intended to be sued was the plaintiff’s employers. In Evans v. Charrington it was the current landlord. In Thistle Hotels v. McAlpine the identity of the person intending to sue was the proprietor of the hotel. In Joanna Borchard it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise. The point can be illustrated by the facts of Rodriguez v. R.J. Parker. In that case the identity of the intended defendant was the driver of a particular car. It was held that there was a mistake as to name. But if the plaintiffs had sued the driver of a different car, there would have been a mistake as to identity. He would have got the wrong description.”

  41. Stocker L.J. while acknowledging the difficulty in distinguishing between the identity of a party and the name of that party, added at page 209:

    42. “If a solution to the problem is to be stated in terms of general application I do not feel I can improve on the test suggested by Lord Justice Lloyd – can the intending plaintiff or defendant be identified by reference to a description which is specific to the particular case – e.g. landlord, employer, owners or shipowners?”

  42. As can be seen, that decision both referred to and relied upon the earlier Court of Appeal decision in Evans Limited –v- Charrington & Co. Ltd. The analysis of the result arrived at in the earlier case, as well as the reasoning in it, appears to be sound.

  43. The Sardinia Sulcis case has been followed in International Bulk Shipping Services Limited –v- Minerals and Metals Trading Corporation of India [1996] 1 All ER 1017 and in Crook –v- Aaron Dale Construction Limited, Court of Appeal, unreported 27 November 1995, where it was regarded as enough that the plaintiff had intended to sue his employer. No authority has been cited which appears to conflict with the approach set out by Lloyd L.J. and Stocker L.J. in Sardinia Sulcis. In those circumstances, there seems to be force in Mr. Ullstein’s submission to us that the claimant in the present case comes within section 35(6), because he always intended to sue the manufacturer of vaccine batch No. 108A41A. The claimant wrongly named the manufacturer in his claim as Merck, just as the plaintiff Evans Limited wrongly named the landlord as Charrington and Co. Limited, but in both cases the intention was to sue the person meeting a particular description specific to the case.

  44. Instinctively one is reluctant to accept an interpretation of section 35(6) which might allow the substitution of a new defendant unconnected with the original defendant and unaware of the claim until after the expiry of the limitation period. Such a reaction initially led me to doubt the conclusion reached by Bell J. But on further consideration it seems to me that any potential injustice can be successfully avoided by the exercise of the court’s discretion under section 35. It is perhaps not without significance that there is no appeal in the present case against the exercise by Bell J. of his discretion against SK.

  45. I conclude therefore that the claimant always intended to sue the manufacturer of the identified vaccine and that that is sufficient to give the court the power to substitute the true manufacturer under section 35 of the 1980 Act and CPR rule 19.5. On this second issue also Bell J. was, in my view, correct in the conclusion which he reached. It follows that I would dismiss this appeal.

    46. LORD JUSTICE HALE:

  46. I agree.

    47. DAME ELIZABETH BUTLER-SLOSS P:

  47. I also agree.

    48. Order: Appeal dismissed with the costs. Permission to appeal was refused.

    (Order does not form part of the approved judgment)

© 2001 Crown Copyright

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