judgement:
On 9 September 2004 the appellant, Steven Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.
In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs at his home in Cumbernauld, at an address in Falkirk and elsewhere in the United Kingdom, between 12 November and 3 December 2003.
The trial judge, Lord Bracadale, sentenced him to 8 years imprisonment.
The appellant appealed against both his conviction and sentence.
On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
Among his grounds of appeal against conviction was one which was first advanced in an additional Note of Appeal.
It relates to the record of a police interview of a John Stronach.
Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and outstanding charges.
In particular, he had convictions for reset, theft by opening lockfast places, assault and robbery and assault and breach of the peace.
He also had a number of outstanding charges, including two alleged contraventions of the Misuse of Drugs Act 1971, an alleged theft by housebreaking and several alleged contraventions of the Road Traffic Act 1988.
One of the outstanding cases under the Misuse of Drugs Act related to events covered by the trial and was known to the appellants legal advisers.
The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court.
This prompted the appellant to lodge his additional ground of appeal: The failure on the part of the Crown to disclose to the defence the existence of all the previous convictions and outstanding charges resulted in the defence being unable to prepare and properly conduct their defence and the result was that the appellant did not receive a fair trial, as guaranteed by article 6(1) of the European Convention on Human Rights.
Following the dismissal of his appeal by the appeal court, the appellant applied for leave to appeal to the Privy Council in relation to the additional ground of appeal.
On 6 March 2009 the appeal court (Lord Osborne, Lady Paton and Lord Mackay of Drumadoon) refused the application as incompetent, on the ground that no intimation of a devolution issue had been given to the Advocate General as required by para 5 of Schedule 6 to the Scotland Act 1998.
The court went on to indicate that, if it had been open to them to grant or refuse leave, they would not have granted leave.
The appellant subsequently applied to the Privy Council for special leave to appeal.
The Board granted special leave.
Although the statement of facts and issues included an issue relating to the competency of the appeal courts decision to refuse leave, neither the advocate depute nor the Advocate General advanced any argument on the point at the hearing of the appeal.
Undoubtedly, when the appeal court determined that the Lord Advocate was not under an obligation by virtue of article 6(1) of the European Convention to disclose the outstanding charges against Mr Stronach, they were in substance determining a devolution issue in terms of para 1(d) or (e) of Part I of Schedule 6 to the Scotland Act 1998 irrespective of whether all the relevant procedural steps had been followed.
It follows, as was held in McDonald v HM Advocate 2008 SLT 993, 1002, paras 48 and 49, that an appeal on that point lies to this Court under para 13(a) of Part II of that Schedule.
Of course, the late Mr Stronachs name was never included in the list of Crown witnesses appended to the indictment for the appellants trial which may help to explain why the need to disclose his criminal antecedents was overlooked.
But, when dismissing the appellants appeal, the appeal court rightly accepted, under reference to Holland v HM Advocate 2005 1 SC (PC) 3, 24, para 72, that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) Convention rights.
Despite the further conclusion of the Privy Council in Holland, at pp 24 25, paras 73 74, that the Crown were also under an obligation to disclose material outstanding charges of which they were aware, the appeal court in the present case drew a distinction between Mr Stronachs previous convictions and his outstanding cases at the time of the trial by which the court obviously meant the charges against him which had been outstanding at the time of his death.
The court continued: We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases.
While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases.
Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty.
If a case is outstanding, necessarily no verdict has been reached in it.
In these circumstances we have insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence.
Previous generations of Scots lawyers and judges do not appear to have
experienced the same insuperable difficulty as the appeal court.
It is, of course, trite that an individual charged with crime is presumed to be innocent until proved guilty.
But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge had been brought.
Most obviously, in an appropriate case, he can be remanded in custody pending trial or granted bail subject to appropriate conditions.
Similarly, depending on the offence and the terms of his contract of employment, he may be suspended from his employment.
More generally, if you know that someone has been charged with, say, fraud, you will be less inclined to enter into a commercial transaction with him; if you know that someone has been charged with sexual abuse, you will think twice before entrusting your children to her care; if you know that someone has been charged with theft, you will be less inclined to trust anything which he tells you, unless it can be confirmed from other sources.
The Privy Councils decision in Holland, that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflected the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others.
To judge from the passage quoted in para 7 above, the appeal court seem to have thought that this was an unprincipled and incoherent innovation.
It is noteworthy that they did not refer to any authority.
In reality, the approach of the Privy Council, in so far as it proceeds on the basis that outstanding charges may have a bearing on a witnesss credibility, merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years.
At one time, in Scots law anyone convicted of serious crimes became technically infamous (infamis) and was thereafter unable to give evidence at any trial.
By the early nineteenth century this rule was proving self defeating for the authorities: all too often it was a gift to the defence since it prevented the only material witnesses to crimes from giving evidence.
So the rule was first relaxed and then eventually abolished.
The only explicit authority relating to a witness with outstanding charges comes from that era.
At a High Court trial at Dumfries, when leading a Crown witness, William Higgins, the advocate depute began by establishing that he was due to be tried at the same circuit on a charge of theft by housebreaking, aggravated by his having been previously convicted of theft and being a thief by habit and repute.
See John Hannah and Hugh Higgins, 17 September 1836, Bells Notes, p 256, in the Supplement to Humes Commentaries on the Law of Scotland respecting Crimes (1844 edition), vol 2.
Since the court ruled on the admissibility of the advocate deputes line of questioning, the defence must have objected that the Crown were, in effect, leading a witness who, if convicted of the crime in question at his trial later in the sitting, would then be unable to testify.
The court rejected the argument and allowed the question.
As the author of the Notes, Sheriff Bell, comments, The court, however, in allowing the question, must have thought it relevant to affect the credit of the witness.
The potential relevance of outstanding charges to the credibility of a witness appears to have been settled in the nineteenth century.
See, for instance, Dicksons Treatise on the Law of Evidence in Scotland (revised edition, 1887) vol 2, para 1619.
Most significantly, Macdonalds Criminal Law of Scotland (3rd edition, 1894), p 462, says: Nor may [a witness] refuse to say whether he has been convicted of or stands indicted for a crime.
This passage appears in virtually the same words in the fifth and final edition (1948), pp 297 298.
The passage could never have stood unchallenged in successive editions of the traditional vademecum of Scottish criminal practitioners and judges if it had not reflected practice in the courts.
Not surprisingly, therefore, neither the advocate depute nor the Advocate General supported the approach of the appeal court in the present case.
In Holland v HM Advocate 2005 1 SC (PC) 3 the appellant was convicted of a charge of assault and robbery at a house in Rutherglen.
The Crown failed to disclose that there were outstanding charges against the complainers, relating to drug dealing at the house in question.
The Privy Council held, at p 25, para 75, that information about these charges would have helped to complete the picture both of the complainers and of their milieu.
In other words, it would have had the potential to weaken the Crown case and so it should have been disclosed.
In his written submissions in the present appeal, the advocate depute gave examples of other situations where an outstanding charge against a Crown witness might materially weaken the Crown case or strengthen the defence case: if the witness denied he had ever been in trouble with the police, an outstanding charge could legitimately be put to him; similarly an outstanding charge might provide a potential motive for the witness giving untrue information in an attempt to curry favour with the authorities.
It is unnecessary to prolong the discussion since the Crown did not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility.
It follows that, in accordance with Holland v HM Advocate 2005 1 SC (PC) 3 and HM Advocate v Murtagh 2009 SLT 1060, the failure of the Crown to disclose the outstanding charges to the defence was indeed incompatible with the appellants article 6(1) Convention rights.
At the hearing of the appeal, all this really went without saying and the only live issue was the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the charges.
The appeal court did not consider that matter, but they did, of course, consider the effect of the Crowns failure to disclose his previous convictions.
Having considered the circumstances, the appeal court were not persuaded that the failure of the Crown to disclose the previous convictions of Stronach to the appellants advisers resulted in an unfair trial and hence a miscarriage of justice.
They accordingly rejected the appellants appeal, so far as based on the Crowns failure to disclose Mr Stronachs previous convictions.
Standing that decision, at the hearing before this Court, Mr Jackson QC, who appeared for the appellant, had to argue that the failure to disclose Mr Stronachs outstanding charges made a significant difference.
In other words, the Court should conclude that there would have been a real possibility of a different outcome if the jury had been made aware, not only of Mr Stronachs previous convictions, but of the outstanding charges against him: in that event, the jury might reasonably have come to a different view as to whether the appellant was concerned in the supplying of the various drugs during the relevant period.
The case against the appellant was circumstantial.
It comprised, for the most part, evidence of observations by police officers who had conducted a surveillance operation over several weeks.
The evidence relating to Mr Stronachs statement concerned events of 24 November 2003.
DS Duncan Smith was not otherwise involved in the relevant events.
He gave evidence that, at about 12.45 pm on 24 November, when checking an address, he saw a blue Peugeot, registration number M810 UEW, parked at the appellants home at 58 Whitelees Road, Cumbernauld.
At 9.32 pm Mr Stronach was seen driving the Peugeot to a service station at Kilmarnock where he met up with a Ford Orion.
The two cars drove in convoy to Logan, near Cumnock.
There, in the car park of the Logangate Arms, the driver of the Orion spoke to Mr Stronach who did not leave his car.
Mr Stronach then drove up to Glasgow and on to the M8 where he was stopped by two police officers.
A Farm Foods bag, found in the glove compartment of the Peugeot, contained cocaine worth at least 30,000.
The police interviewed Mr Stronach on tape in the early hours of 25 November.
This is the interview which is the subject of the additional ground of appeal.
The tape recording of the entire interview was played to the jury during the evidence of DC McFadden.
In the course of the interview Mr Stronach said that he had been sent by a man called Stevie from Abronhill to sell the car.
The appellants first name is Steven and his home was in the Abronhill district of Cumbernauld.
The description of Stevie given by Mr Stronach fitted the appellant.
On 27 November the appellant left his home and drove to the house of Mr Stronachs girlfriend in Denny.
He then took Mr Stronachs passport to Airdrie Sheriff Court where it was used in connexion with his application for bail.
A receipt for the passport from the court dated 27 November was recovered from the appellants home.
Defence counsel took DC McFadden through the transcript of the interview in detail and was able to show that Mr Stronach had told many lies.
When he came to address the jury, the advocate depute accepted that he had clearly lied about his movements and about his involvement in drugs.
But the advocate depute suggested to the jury that it would be easier to accept those parts of the interview which were supported by other acceptable evidence.
In particular, he pointed to the evidence of DS Smith, who was not otherwise involved in the investigation, that the Peugeot which Mr Stronach was driving when stopped by the police had been parked outside the appellants house earlier the same day.
The advocate depute also referred to the evidence about the appellant collecting Mr Stronachs passport from his girlfriends house and taking it to Airdrie Sheriff Court in connexion with his application for bail on the drugs charges arising out of the recovery of the cocaine from the Peugeot.
The advocate depute argued that it would be a spectacular coincidence if this did not indicate that the appellant knew of Mr Stronachs involvement with drugs.
summarised the position in this way: In his supplementary report to the appeal court, Lord Bracadale, Taking into account the analysis of the interview of Mr Stronach carried out by [defence counsel] and the concessions made as to his credibility by the advocate depute, the jury would have been most likely to conclude that Mr Stronach did indeed tell many lies in the course of the interview.
They would, however, have been entitled to be selective in their view of the evidence of Mr Stronach.
Lord Bracadale then referred to Mr Stronachs previous convictions and added: In the circumstances outlined above it is difficult to see how the canvassing of the previous convictions of Mr Stronach before the jury would have bolstered the already largely successful attack on his credibility.
It is also difficult to see why knowledge of the previous convictions would have discouraged the jury from being selective in the approach to the contents of the interview of Mr Stronach.
Against that background, the appeal court were not persuaded that the failure of the Crown to disclose Mr Stronachs previous convictions resulted in an unfair trial and hence a miscarriage of justice.
For exactly the same reasons, I am not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference.
More especially, it would not have affected the fact that the jury, who must have been well aware of the defects in Mr Stronachs statements, could still, with equal plausibility, have accepted those elements, and only those elements, in Mr Stronachs account which were corroborated by other acceptable evidence.
I am accordingly satisfied that there is no real possibility that the jury would have come to a different verdict on the four charges against the appellant if they had been made aware, not only of Mr Stronachs previous convictions, but of the outstanding charges against him as well.
There has therefore been no miscarriage of justice.
I would accordingly dismiss Mr Allisons appeal and remit the case to the appeal court to proceed as accords.
LORD HOPE
make the same order as he proposes.
The point of principle which this case raises is whether a failure to disclose outstanding charges against a Crown witness is incompatible with the accuseds article 6(1) Convention rights.
Had it not been for the passage in the opinion of the appeal court which Lord Rodger has quoted in para 7 of his judgment, I would not have thought that there was now any room for dispute on the point.
In McDonald v HM Advocate [2008] UKPC 46. 2008 SLT 993, para 51 Lord Rodger said that the decisions of the Board in Holland v HM Advocate [2005] UKPC D 1, 2005 SC (PC) 3 and Sinclair v HM Advocate [2005] UKPC D 2, 2005 SC (PC) 28 had answered this question.
Included within the general description of disclosable material are two classes of material, namely police statements of any witnesses on the Crown list and the previous convictions and outstanding charges relating to those witnesses.
I agree with Lord Rodger that the appeal must be dismissed, and I would
The rule of law on which that classification is based is that of fairness.
In McLeod v HM Advocate (No 2) 1998 JC 67, Lord Justice General Rodger said that our system of criminal procedure proceeds on the basis that the Crown have a duty at any time to disclose to the defence information which would tend to exculpate the accused.
In Sinclair v HM Advocate, para 33 I said that the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused, and that for this purpose any evidence which would tend to undermine the prosecution case or to assist the case for the defence is to be taken as material.
Sometimes the proposition is worded differently.
In HM Advocate v McDonald [2008] UKPC 46, 2008 SLT 993, para 50 Lord Rodger said: Put shortly, the Crown must disclose any statement of other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case (disclosable material) Lord Bingham of Cornhill used the same formula when describing the golden rule in R v H and others [2004] UKHL 3, [2004] 2 AC 134, para 14 when he said: Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.
In HM Advocate v Murtagh [2009] UKPC 36, 2009 SLT 1060, para 11, I said, under reference to McLeod, Holland, Sinclair and McDonald, that it was well settled that the Crown must disclose any statements or other material of which it is aware which either materially weakens the Crown case or materially strengthens the case for the defence: see also Lord Rodger, para 48.
These formulations should however be regarded as expressing what has been described as the golden rule in shorthand.
After all, they are describing a decision about disclosure which must normally be taken before the trial.
It is a decision which will be based on an assumption as to what may happen in the future.
So the question the Crown must ask itself is what the possible effect would be likely to be if the material were to be disclosed.
As I said in R v Brown (Winston) [1998] AC 367, 374, it would be contrary to the principle of fairness for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence.
Lord Collins, referring to what I said in that case, also used the word might" in Murtagh, para 75.
That is the way Lord Rodger has expressed the position that the Crown has adopted in this case in para 14, above, and I respectfully agree with it.
As for the point that troubled the appeal court, it is true that a distinction can be drawn between previous convictions and outstanding charges.
But that does not mean that it can be assumed that information about outstanding charges of Crown witnesses can never affect their credibility.
It is enough, for the disclosure rule to apply to them as a class, that they might do so.
Of course the person concerned is presumed to be innocent until proved guilty.
But if he is asked the question whether he has ever been in trouble with the police, he must answer it.
A false or evasive answer might well be thought by a jury to undermine his credibility.
Other circumstances may be envisaged where the fact that charges have been brought against the witness may have that effect.
The application of the rule to outstanding charges, as the Crown accepts, is really just based on common sense and every day experience.
No one should now be in any doubt that the disclosure rule applies to them, or as to the reasons why this is so.
LORD WALKER
that he gives I would dismiss this appeal.
I am in full agreement with the judgment of Lord Rodger.
For the reasons I agree with the judgment of Lord Rodger and, for the reasons that he gives, I agree with the judgment of Lord Rodger and, for the reasons that he gives,
LORD BROWN
I too would dismiss this appeal.
LORD KERR
I too would dismiss this appeal.

summary:
On 9 September 2004 the appellant, Steve Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.
In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs.
The trial judge sentenced him to 8 years imprisonment.
The appellant appealed against both his conviction and sentence.
On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
One of his grounds of appeal, which was first advanced in an additional Note of Appeal, related to the record of a police interview of a John Stronach.
Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and that there were outstanding charges against him.
One of the outstanding cases was under the Misuse of Drugs Act and related to events covered by the trial and it was therefore known to the appellants legal advisers.
The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court.
This prompted the appellant to argue that the Crowns failure to disclose to the defence the existence of all the previous convictions and outstanding charges was incompatible with his article 6 Convention rights.
As a result, the defence had been unable to prepare and conduct their defence properly and appellant did not receive a fair trial.
When dismissing the appellants appeal, the appeal court accepted that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) rights.
Having considered the circumstances of the case, however, the appeal court was not persuaded that the Crowns failure had resulted in an unfair trial and hence a miscarriage of justice.
The appeal court drew a distinction between Mr Stronachs previous convictions and the outstanding charges against him.
Because of the presumption of innocence, the appeal court did not consider that the existence of outstanding charges could be of importance in connection with the preparation of a defence or with any challenge that might be mounted to the credibility of a witness.
The Supreme Court unanimously dismisses the appeal, with Lord Rodger delivering the leading judgment of the Court.
The Court disagrees with the appeal courts view in relation to outstanding charges.
It is, of course, trite that an individual charged with crime is presumed to be innocent until proven guilty.
But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge has been brought (para 9).
The Privy Councils decision in Holland v HM Advocate 2005 1 SC (PC) 3, that the Crown should disclose outstanding charges of Crown witnesses of which they are aware, simply reflects the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others.
This approach merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years (para 10).
In the present case, the Crown does not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility.
Indeed the Crown accepts that, in accordance with Holland and HM Advocate v Murtagh 2009 SLT 1060, the failure to disclose the outstanding charges to the defence was incompatible with the appellants article 6(1) rights (para 14).
The only live issue in the appeal, therefore, is the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the outstanding charges.
Having considered the circumstances of the case against the appellant, the Court is not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference (para 22).
The Court is satisfied that there is no real possibility that the jury would have come to a different verdict on the charges against the appellant if they had been made aware, not only of Mr Stonachs previous convictions, but of the outstanding charges against him as well.
There has therefore been no miscarriage of justice (para 23).


judgement:
The claimant, Declan OByrne, was vaccinated on 3 November 1992 with an HIB vaccine (the Product).
He alleges that the Product was defective and that it caused him brain damage.
The vaccine in question was manufactured in France by a French company, now known as Aventis Pasteur SA (APSA).
On 18 September 1992 APSA sent a consignment of the vaccine, including the Product, to a company, now known as Aventis Pasteur MSD Ltd (APMSD), in England.
At all relevant times in 1992 APMSD was a wholly owned subsidiary of APSA and acted as a United Kingdom distributor for APSAs products.
APMSD received the consignment on 22 September.
On an unknown date, probably in late September or early October, APMSD sold part of the consignment, including the Product, to the Department of Health, which in turn supplied it to the medical practice which used it to vaccinate the claimant.
On 1 August 2001 the claimant began proceedings for damages against APMSD, alleging that he had suffered damage caused by a defect in the Product which APMSD had manufactured and/or produced and so it was liable under section 2 of the Consumer Protection Act 1987.
In its defence, served in November 2001, APMSD pointed out that it was not the manufacturer, but merely the distributor, of the Product.
In response to a further request, in April 2002 APMSD identified APSA as the manufacturer of the Product.
On 16 October 2002 the claimant issued separate proceedings against APSA, also under section 2 of the Consumer Protection Act, alleging that APSA was the producer of the Product and claiming damages against it.
APSA defended the action on the basis, inter alia, that it had put the Product into circulation either on 18 September 1992, when it sent the Product to APMSD, or on 22 September 1992 when APMSD received it.
APSA contended that, in these circumstances, the claimants action against it was time barred since it had been raised more than 10 years after APSA had put the Product into circulation.
In advancing this defence, APSA relied on section 11A(3) of the Limitation Act 1980 and 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 (OJ 1985 L210, p 29) (the Directive), which provides: 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 ten 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.
Faced with this defence in his action against APSA, in his action against APMSD with which this appeal is concerned the claimant applied on 10 March 2003 for an order that APSA be substituted as defendant in place of APMSD.
The application was based on section 35(5)(b) and (6)(a) of the Limitation Act 1980 and rule 19.5(3)(a) of the CPR.
It is, of course, common ground that the application was made after the expiry of the ten year time limit under Article 11 for initiating proceedings against the producer of the Product.
In these circumstances APSA contended that, in so far as English law might permit APSA to be substituted after the expiry of the time limit, it was inconsistent with Article 11.
By contrast, the claimant contended that provisions of domestic law permitting this substitution would not be inconsistent with Article 11.
In November 2003, at the request of both parties, the High Court made a preliminary reference to the European Court of Justice.
The European Court answered three questions: OByrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) (Case C 127/04) [2006] 1 WLR 1606.
One of the questions concerned the point in time at which a product was put into circulation for purposes of Article 11 in a situation where the producer which manufactured it then transferred it to a distribution subsidiary.
I quote and discuss the European Courts ruling on this point at paras 20 23 below.
concerned, the European Court held, [2006] 1 WLR 1606, 1622: So far as the power to substitute one producer for another as defendant was 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.
In the light of this answer, Teare J allowed the claimants application for substitution of APSA in place of APSMD, pursuant to section 35(5)(b) and (6)(a) of the Limitation Act 1980 and rule 19.5(3)(a) of the CPR, on the ground that the claimant had named APMSD as the defendant in mistake for APSA: OByrne v Aventis Pasteur MSD Ltd [2007] 1 WLR 757.
APSA appealed, but the Court of Appeal (Sir Anthony Clarke MR, Arden and Moore Bick LJJ) [2008] 1 WLR 1188 dismissed its appeal.
The House of Lords granted APSA leave to appeal.
At the hearing of the appeal a majority of the appellate committee considered that it was clear that the European Court was saying that, in some circumstances, proceedings, which are obviously intended to be proceedings against the producer but which use the wrong name, can properly be treated by national procedural law as having been proceedings against the producer.
The majority considered that this would have been the proper approach in the circumstances in the present case and so they would have dismissed APSAs appeal.
But, because this was not the unanimous view of the appellate committee as to the effect of the judgment of the European Court, the House of Lords referred the case to Luxembourg for a second time: [2008] 4 All ER 881.
The decision on this reference was given by the Grand Chamber: Aventis Pasteur SA v OB (Case C 358/08) (unreported) given 2 December 2009.
The answer returned by the European Court in response to the second reference is not in line with either of the interpretations of its judgment on the first reference which had been advanced before the appellate committee.
Happily, however, this time the core answer could not be clearer: 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.
Putting the point shortly and subject to the important qualification which I must address in a moment the Court of Justice holds that, once ten years have passed since a producer put a product into circulation, that producer cannot be sued, unless proceedings have been taken against it within the ten year period.
As the Court explains, at para 38 of its judgment, Article 11: provides for a uniform 10 year period after which those rights are extinguished.
It fixes, in a binding manner, the starting point of that period as the date on which the producer put into circulation the product which caused the damage.
It specifies the institution of proceedings against that producer as the only reason for that period to be interrupted.
It follows, as the Court says at para 44, that a rule of national law which allows the substitution of one defendant for another during proceedings cannot, under Directive 85/374, be applied in a way which permits such a producer to be sued, after the expiry of that period, as defendant in proceedings brought within that period against another person.
As it explained in paras 41 43 of its judgment, the Court adopted this approach because, in its view, it gave effect to the balance which the Community legislator had intended to achieve between the interests of consumers and producers: 41.
Pursuant to the 11th recital in the preamble to Directive 85/374, the latter seeks, second, to limit, at Community level, the liability of the producer to a reasonable length of time, having regard to the gradual ageing of products, the increasing strictness of safety standards and the constant progressions in the state of science and technology. 42.
As is stated by the Advocate General in points 49 and 50 of her Opinion, the Community legislatures intention to limit in time the no fault liability established by Directive 85/374 is also intended to take account of the fact that that liability represents, for the producer, a greater burden than under a traditional system of liability, so as not to restrict technical progress and to maintain the possibility of insuring against risks connected with that specific liability (see, to that effect, paragraph 3.2.4 of the Report from the Commission of 31 January 2001 on the Application of Directive 85/374 on Liability for Defective Products, COM (2000) 893 final). 43.
It follows that, without prejudice to the possible application of the rules on contractual or non contractual liability or a special liability system existing at the moment when Directive 85/374 was notified, the application of which is not prejudiced by the latter, as is apparent from Article 13 thereof and the 13th recital in the preamble thereto, the producer, as defined in Article 3 of that directive, is, under Article 11 of that directive, relieved of his liability under that article upon the expiry of a period of 10 years from the putting into circulation of the product in question, unless, in the meantime, proceedings have been instituted against him.
The European Court also went out of its way, at para 48, to emphasise that it made no difference if the failure to sue a particular producer within the relevant ten year period had been due to some mistake on the claimants part.
Even in that event what mattered was that the ten years had expired without that producer having been sued.
So it could not be substituted as defendant after the ten years were up: 48.
It should also be added that subjective elements deriving, for example, from the wrongful attribution, by the injured person, of the status of manufacturer of the allegedly defective product to a company which is not the manufacturer, or from the injured persons genuine intention to proceed against that manufacturer by way of its action against such other company, cannot, without infringing the objective dimension of the harmonisation rules laid down by Directive 85/374, justify the substitution, after the expiry of the 10 year period set out in Article 11 thereof, of that manufacturer in proceedings initiated during that period against another person (see, to that effect, OByrne, paragraph 26 and, by analogy, Case C 51/05 P Commission v Cantina sociale di Dolianova and Others [2008] ECR I 5341, paragraphs 59 to 63).
In these circumstances the claimant now accepts that he cannot use section 35 of the Limitation Act 1980 as a basis for substituting APSA for APMSD as the defendant in the present proceedings.
The claimant submits, however, that, even though he cannot make the substitution on the basis of his mistake, the European Court indicated in its judgment a different basis on which he can actually make the desired substitution.
For this purpose he relies on the second answer which the Court of Justice gave on the second reference: However, first, Article 11 must be interpreted as not precluding a national court from holding that, in the proceedings instituted within the period prescribed by that article against the wholly owned subsidiary of the producer, within the meaning of Article 3(1) of Directive 85/374, that producer can be substituted for that subsidiary if that court finds that the putting into circulation of the product in question was, in fact, determined by that producer.
In short, the claimant submits that the position falls within the terms of this qualification to the European Courts core answer on the effect of Article 11 and so there is nothing to prevent him from substituting APSA for APMSD on this basis.
APSA contends, however, that this passage in the Courts judgment has to be interpreted in the context of the judgment as a whole and in the light of the Opinion of Advocate General Trstenjak, 8 September 2009, unreported, which preceded it.
When that is done, APSA says, it can be seen that the qualification should be given a narrower interpretation, which would not allow substitution in this case.
As will become apparent, in a case like the present, the possibility of substitution depends, to some extent, on various matters of fact concerning the relationship between the two entities.
At the hearing before this Court, however, on the basis of what he now knows about the facts, the claimants counsel, Mr Maskrey QC, accepted that, if the Court were to conclude that APSAs interpretation of the European Courts judgment was correct, then its appeal against its substitution for APMSD should be allowed.
The dispute between the parties turns, therefore, on the interpretation of paras 49 53 of the judgment of the European Court on the second reference: 49.
In light of the foregoing, Article 11 of Directive 85/374 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. 50.
However, the Court, giving a preliminary ruling on a reference, has jurisdiction, in the light of the information in the case file, to give clarifications to guide the referring court in giving judgment in the main proceedings (see, to that effect, Case C 366/98 Geffroy [2000] ECR I 6579, paragraph 20, and Case C 446/07 Severi [2009] ECR I 0000, paragraph 60). 51.
It should be noted in that regard, first, that it is apparent from the reference for a preliminary ruling that APMSD (formerly Mrieux UK), which in 1992 supplied the vaccine which was administered to OB to the United Kingdom Department of Health, was, at that time, a wholly owned subsidiary of APSA (formerly Pasteur Mrieux). 52.
In such a context, it is for the national court, in accordance with the applicable rules of national law on matters of proof, to assess whether the putting into circulation of the product in question was, in fact, determined by the parent company which manufactured it. 53.
Where the national court notes that fact, Article 11 of Directive 85/374 does not preclude that court from holding that, in the proceedings instigated within the period prescribed by that article against the subsidiary under the system of liability laid down by that directive, the parent company, producer within the meaning of Article 3(1) of that directive, can be substituted for that subsidiary.
Under reference to its reasoning in paras 34 48, in para 49 the European Court gave its core ruling on the construction of Article 11, which I have already discussed.
The Court then went on, in the subsequent paragraphs, to give some additional guidance which it considered might be helpful to any domestic judges who were going to be dealing with this particular case.
There is nothing, however, to suggest that, in these paragraphs, the Court was intending to depart from the principled approach which it had just been at such pains to develop and finally to formulate in para 49.
What the Court says in paras 50 54 must therefore be read in the light of that core decision.
In other words, the Court is explaining how that decision may fall to be applied, depending on the domestic courts assessment of the practical relationship between the manufacturer, APSA, and the distributor, APMSD.
In venturing to give this additional assistance the European Court was following the lead of the Advocate General.
Although the structure of her Opinion makes for repetition, it is clear that she, too, had concluded that only the bringing of proceedings against the particular producer could stop the Article 11 time bar from taking effect ten years after the producer had put the relevant product into circulation.
See, in particular, paras 61 and 69 78 of her Opinion.
So, in reaching its conclusion in para 49 of its judgment, the Court was following this aspect of the Advocate Generals reasoning.
The Advocate General went on to hold, at para 68, that a substitution of the producer as a defendant when he has been released by the expiry of the ten year limitation period is equally incompatible with the Directive.
She gave her reasoning for this conclusion at para 79, where she said that to allow the substitution of a producer against which proceedings had not been taken within the ten year period in place of a producer against which they had been taken would de facto be capable of also interrupting the limitation period in relation to producers.
The upper temporal limit of liability for producers in Article 11 would thereby be broken through, and that is excluded in the light of the complete harmonisation of the field which is the aim of Directive 85/374.
So, when reaching the comparable conclusion at paras 44 47 of its judgment, the European Court was, again, following the Advocate Generals approach.
The Advocate General also gave some thought to how Article 11, thus interpreted, should be applied in a case, like the present, where the parent manufacturing producer (APSA) transferred the Product to a distributor (APMSD) which was its wholly owned subsidiary.
In this connexion the Advocate General referred back to the judgment of the European Court on the first reference: OByrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) [2006] 1 WLR 1606.
The first ruling in that judgment, at p 1622, had been in these terms: 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 is to be interpreted as meaning that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed.
This conclusion reflects what the Court says in para 27 of its judgment, which is, in turn, based on its reasoning in the preceding paras 20 26.
Paragraphs 27 32, [2006] 1 WLR 1606, 1620 1621, are of importance in the present context: 27.
In light of those considerations, a product must be considered as having been put into circulation, within the meaning of Article 11 of the Directive, when it leaves the production process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed. 28.
Generally, it is not important in that regard that the product is sold directly by the producer to the user or to the consumer or that that sale is carried out as part of a distribution process involving one or more operators, such as that envisaged in Article 3(3) of the Directive. 29.
When one of the links in the distribution chain is closely connected to the producer, for example, in the case of a wholly owned subsidiary of the latter, it is necessary to establish whether it is a consequence of that link that that entity is in reality involved in the manufacturing process of the product concerned. 30.
The examination of such a close relationship must not be influenced by the question whether or not distinct legal persons are involved.
On the other hand it is of relevance whether those are companies carrying out different production activities or are, on the contrary, companies one of which, ie the subsidiary company, acts simply as a distributor or depository for the product manufactured by the parent company.
It is for the national courts to establish, having regard to the circumstances of each case and the factual situation of the matter before them, whether the links between the producer and another entity are so close that the concept of producer within the meaning of Articles 7 and 11 of the Directive also includes that latter entity and that the transfer of the product from one to the other of those entities does not amount to putting it into circulation within the meaning of those provisions. 31.
In any case, contrary to what is maintained by the defendants, the fact that the products are invoiced to a subsidiary company and that the latter, like any purchaser, pays the price, is not conclusive.
The same applies to the question of knowing which entity is to be considered as owner of the products. 32.
Therefore the reply to the first question must be that Article 11 of the Directive is to be interpreted as meaning that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed.
As can be seen from para 31 of the European Courts judgment, in the first reference APSA which naturally wanted to push the starting date for the ten year period back as far as possible was arguing that it had put the Product into circulation when it transferred the consignment containing the Product to APMSD in the period of 18 to 22 September 1992.
In support of that argument APSA was pointing to the fact that APMSD had been invoiced for the consignment and had paid for it.
The claimants counsel, who was, of course, contending for as late a date as possible for the Product being put into circulation, was contending that this had not happened until APMSD supplied it to the Department of Health.
The European Court rejected any approach that was based on the formal legal relationship between the parent manufacturing producer and the subsidiary distributor.
In particular, the Court emphasised, at para 30, that the fact that the manufacturer and the distributor were distinct legal entities was irrelevant.
The national court had to look at all the links between the two entities and decide on that basis whether they were so close that, for the purposes of Article 11, the concept of the manufacturing producer (which would apply to APSA) really included the distributor (in this case, APMSD).
In that event, even if the Product were transferred from one to the other, this would not mean that it had been taken out of the manufacturing process operated by the producer.
So, applying the test in para 27 of that judgment, for the purposes of Article 11 the Product would not have been put into circulation by the manufacturing producer when it transferred it to the distributor.
Obviously, the Courts concern was that, unless this were indeed the position, at least in the case of products with a long shelf life, by the time they were eventually put on the market by the distributor, a significant part of the ten year period for proceedings against the manufacturing producer might have elapsed.
This would upset the balance which the Directive sought to maintain between the interests of the consumer and the producer.
In paras 83 90 of her Opinion on the second reference, the Advocate General did indeed make use of this part of the Courts analysis in the first reference when considering how the domestic court might determine the date at which the Product was put into circulation.
But she also used it for the rather different purpose of showing when a distribution subsidiary could be so closely involved with the parent producer that they could, in effect, be regarded as one for the purposes of Article 11.
In that event, suing the subsidiary would be tantamount to suing the parent.
In concrete terms, if that were the position in this case, by suing APMSD within the ten year period, the claimant would also have sued APSA within that period.
So the Article 11 time bar would not bite and the claimant could, if he wished, substitute APSA for APMSD as defendant in the present action or, indeed, simply proceed with his (second) action against APSA.
The Advocate Generals reasoning and conclusions on these matters are to be found in paras 109 113 of her Opinion: 109.
If, by contrast, the national courts were to reach the conclusion in the main proceedings that a supplier such as APMSD was, because of its involvement in the manufacturing process operated by APSA, to be regarded together with APSA as a producer within the meaning of the first half of Article 3(1) of Directive 85/374, the bringing of proceedings in due time against APMSD would indeed have the effect of interrupting the limitation period in relation to APSA. 110.
The decisive point here is the fact that a supplier who is sufficiently closely involved in the manufacturing process operated by the producer is to be classified together with the producer as a producer within the meaning of the first half of Article 3(1) of the directive.
Because those two entities are to be regarded, in the light of the functional interpretation of the concept of producer, as one producer within the meaning of the first half of Article 3(1), the limitation period must also run in the same way for both entities. 111.
In this connection the Court in OByrne, after carefully weighing up the interests of consumers and producers, synchronised the starting point of the 10 year limitation period under Article 11 of Directive 85/374 for the producer stricto sensu and the supplier who forms part of the manufacturing process by reference to the date on which the supplier puts the product into circulation.
In the context of the same balancing of interests, the running of the limitation period must also be uniform. 112.
Since the running of the limitation period under Article 11 of the directive is interrupted only by the bringing of proceedings, a uniform limitation period for the producer and supplier who are to be regarded together as a producer within the meaning of the first half of Article 3(1) presupposes that the bringing of proceedings against the supplier interrupts the running of the 10 year limitation period not only in relation to that supplier but also in relation to the producer in whose manufacturing process the supplier is involved. 113.
Accordingly, my conclusion is that classification to be assessed by the national courts of the supplier of a product as its producer has the consequence that that supplier is liable under Article 1 of the directive for the damage caused by a defect in the product, regardless of whether he is classified as a producer within the meaning of Article 3(1) or a producer within the meaning of Article 3(3) of the directive.
Classification of a supplier as a producer within the meaning of the first half of Article 3(1) of the directive has the further consequence that the 10 year limitation period for the producer in whose manufacturing process the supplier is involved does not start to run until the time when the supplier puts the product into circulation.
At the same time, proceedings brought against that supplier will in that case interrupt the running of the limitation period under Article 11 of the directive in relation also to the producer in whose manufacturing process the supplier is involved.
In the summary which she gives in para 115, the Advocate General repeats the conclusion which she reaches in para 113.
Two points stand out.
First, the Advocate Generals conclusion in paras 113 and 115 involves no departure from the principle that the Article 11 time bar can only be interrupted by bringing proceedings against the producer concerned.
Secondly, when she contemplates the domestic court classifying a supplier as a producer within the meaning of Article 3(1), she contemplates the domestic court applying the approach of the European Court in its judgment on the first reference: OByrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) [2006] 1 WLR 1606.
And as the Advocate General recalls at paras 111 and 113 according to that judgment, where the supplier forms part of the manufacturing process, the starting point of the ten year limitation period under Article 11 is fixed by reference to the date on which the supplier puts the product into circulation.
Indeed, in the proceedings on the first reference, the claimant fought successfully to establish exactly that point.
With this background in mind, it is appropriate to return to paras 51 and 52 of the European Courts judgment on the second reference: 51.
It should be noted in that regard, first, that it is apparent from the reference for a preliminary ruling that APMSD (formerly Mrieux UK), which in 1992 supplied the vaccine which was administered to OB to the United Kingdom Department of Health, was, at that time, a wholly owned subsidiary of APSA (formerly Pasteur Mrieux). 52.
In such a context, it is for the national court, in accordance with the applicable rules of national law on matters of proof, to assess whether the putting into circulation of the product in question was, in fact, determined by the parent company which manufactured it.
It is correct to say that, unlike the Advocate General, the European Court does not actually refer to its answer to the first question on the first reference.
But there is nothing whatever to suggest that it intended to depart in any way from that analysis.
The assumption must therefore be that it falls to be applied where appropriate.
Certainly, the Court supplies no alternative or additional theoretical analysis which could displace or supplement it.
The European Court is concerned to show how the principle which it has just laid down would apply in relation to the substitution of APSA for APMSD.
Certainly, to judge by the Advocate Generals analysis and there is no rival the only way in which that principle could be maintained and yet APSA could be substituted for APMSD, would be if, by suing APMSD, the claimant had, in effect, sued APSA.
So the Court must be pointing the domestic court to the way in which it should approach that issue.
Mr Maskrey argued, however, that the position was really much simpler.
As the European Court noted, at para 51, APMSD was a wholly owned subsidiary of APSA.
Secondly, APSA had determined that the Product should be put into circulation by transferring it to its wholly owned subsidiary, APMSD, and it had then in fact transferred the product to the subsidiary.
So the requirements of paras 51 and 52 were fulfilled and the substitution could be made.
I would reject that argument.
As counsel freely admitted, this argument runs completely counter to the one which the claimant advanced on the first reference.
That is, of course, merely a forensic point.
More significantly, the argument is internally incoherent as well as being inconsistent with the reasoning of the Court of Justice.
If, as counsel now contends, APSA put the Product into circulation when it supplied it to APMSD, then, consistently with the Courts ruling on the first reference, this can only be because the two companies are to be regarded as having operated quite distinctly so that the Product was taken out of the manufacturing process operated by APSA when it was transferred to APMSD.
But the fact that APMSD was a wholly owned subsidiary of APSA, which the Court began by noting in para 51, could not be a pointer towards that conclusion.
If anything, it would point against it.
So, on this interpretation, the European Court could have had no reason to draw attention to the status of APMSD.
Yet it did.
Mr Maskrey criticised APSAs interpretation of para 52 on the specific ground that it involved reading in three words: whether the putting into circulation of the product in question by the supplier, was, in fact, determined by the parent company which manufactured it.
Mr Leggatt QC accepted that this was, in effect, how he contended that the sentence should be interpreted.
In my view, that is indeed the correct interpretation.
The European Courts reference to APMSD being a wholly owned subsidiary of APSA is only consistent with it directing attention to factors which may point to a close connexion between the two companies.
Given the context of the discussion (seeing whether proceedings against APMSD count as proceedings against APSA), that is precisely what we would expect.
For the reasons already given, we should also expect the focus to be on the time when the Product was supplied by APMSD to the Department of Health, since, if APMSD was, in effect, tied into the manufacturing process of APSA, the Product would only be put into circulation when it was supplied by APMSD.
And that is what we find in para 51 where the European Court refers to APMSDs status as a wholly owned subsidiary at the time when it supplied the Product to the Department of Health.
Therefore, in para 52 the Court must indeed be referring to the Product being put into circulation by the supplier at the behest of its parent.
That interpretation is also consistent, of course, with what the Advocate General says in paras 111 and 113 of her Opinion on the second reference (quoted at para 24 above).
This interpretation of para 52 is also consistent with its language, both in the English version and in the original French (si la mise en circulation du produit concern a t dtermine en fait par la socit mre qui la fabriqu).
The European Court is plainly contemplating a situation where, to all outward appearances, a supplier has decided to put a product into circulation.
The domestic court must look at the circumstances to see whether, despite appearances, in fact, it was the manufacturing parent company which had determined that the product should be put into circulation.
If, by contrast, the European Court had meant what Mr Maskrey suggested, it would have had no reason to use this language: all it would have required to say was that the national court was to assess whether the parent company, which manufactured the product, transferred it to its wholly owned subsidiary, the distributor.
The further difficulty with that interpretation is, of course, that everyone agrees that APSA sent the consignment containing the Product to APMSD on 18 September and that APMSD received it on 22 September.
There would therefore be nothing for the domestic court to assess.
The European Court was therefore indicating, in para 52, that the domestic court was to consider, in accordance with domestic rules of proof, whether the manufacturer, APSA, was in fact controlling APMSD and determining when it put the Product into circulation.
There is nothing in the judgment of the European Court on either reference to suggest that the fact that APMSD was a wholly owned subsidiary of APSA could somehow, of itself, be a reason for allowing APSA to be substituted after the expiry of the ten year period.
Indeed, that would be inconsistent with the two companies being distinct entities.
Rather, the fact that APMSD was a wholly owned subsidiary was simply one by no means decisive factor to be taken into account by the domestic court when assessing how closely the subsidiary was involved with its parents business as an Article 3(1) producer.
All the circumstances would have to be taken into account.
If APSA was indeed in a position to decide when the Product was to be distributed, then APMSD would be integrated into the manufacturing process and so tightly controlled by APSA that proceedings against APMSD could properly be regarded as proceedings against the parent company, APSA.
Hence, as the European Court goes on to hold in para 53, the manufacturing parent company could be substituted for the subsidiary APSA for APMSD.
Mr Maskrey submitted that, if the European Courts judgment were interpreted in this way, then it would allow substitution of the parent producer only where the supplier could, in any event, itself be sued as a producer falling within the definition in Article 3(1).
But that is, of course, precisely what the Advocate General does say in paras 113 and 115 of her Opinion.
Moreover, the criticism seems a little ungenerous.
It is, after all, the claimant who, for what must presumably appear to him to be good reasons, wishes to substitute APSA for APMSD as the defendant.
The Advocate General and the Court are merely responding to that situation by pointing to circumstances where it might indeed be possible for the claimant to do so.
It is, of course, the case that, in any such circumstances, the claimant will also be able to sue the supplier as a producer within the terms of Article 3(1).
But that is not a criticism of the approach taken by the Advocate General or the Court.
If a claimant will gain nothing by suing the manufacturer in substitution for the supplier, he will presumably not try to do so.
But such a course might have advantages if, say, the supplier were insolvent.
The Advocate General and the European Court were entitled to assume that, in this case, the claimant had what he regarded as good reasons for wishing to make the substitution.
For these reasons, I would allow the appeal and set aside paragraph 1 of the order of Teare J dated 20 October 2006 substituting Aventis Pasteur SA for Aventis Pasteur MSD in the present action, HQ02X00848.

dataset_name: UK-Abs

summary:
The Respondent was vaccinated on 3 November 1992 with a vaccine (the Product) manufactured in France by a French company, now known as Aventis Pasteur SA (APSA).
On 18 September 1992 APSA sent a consignment of the vaccine, including the Product, to its then wholly owned subsidiary, Aventis Pasteur MSD Ltd (APMSD), in England.
APMSD acted as a United Kingdom distributor for APSAs products.
APMSD received the consignment on 22 September 1992 and sold part of it, including the Product, on an unknown date.
The Product was eventually used to vaccinate the Respondent.
On 1 August 2001 the Respondent began proceedings under section 2 of the Consumer Protection Act 1987 (CPA) against APMSD, alleging that the Product was defective and had caused him brain damage.
On 16 October 2002 the Respondent issued separate proceedings against APSA also under section 2 of the CPA.
Relying on section 11(3) of the Limitation Act 1980 (the LA) and Article 11 of Council Directive 85/374/EEC of 25 July 1985 (the Directive), APSA defended this action on the basis that it had been raised more than ten years after APSA had put the Product into circulation, which APSA alleged was 22 September 1992 at the latest.
Broadly, Article 11 provides that there is a ten year time limit for initiating proceedings against the producer (as defined in the Directive) of a product.
Faced with this defence, the Respondent sought an order that APSA be substituted as a defendant in place of APMSD in the proceedings against APMSD, relying on section 35(5)(b) and (6)(a) of the LA.
These provisions allow a new party to be substituted for a party whose name was given in any claim made in the original action in mistake.
APSA contended that, in so far as English law permitted such substitution after the expiry of the time limit, it was inconsistent with Article 11.
The High Court made a preliminary reference to the European Court of Justice (ECJ).
So far as the power to substitute one producer for another as defendant was concerned, the House of Lords (to which the case eventually came) could not reach a unanimous view as to the effect of the ECJs judgment.
The House of Lords therefore referred the question back to the ECJ.
The answer returned by the ECJ is now clear: once ten years have passed since a producer put a product into circulation, that producer cannot be sued unless proceedings have been taken against it within the ten year period.
The Respondent now accepts that he cannot use section 35 of the LA as a basis for substituting APSA for APMSD as the defendant in the present proceedings.
The Respondent submits, however, that in its judgment the ECJ indicated a different basis on which he can actually make the desired substitution, namely, that in proceedings instituted within the ten year period against the wholly owned subsidiary of the producer, that producer can be substituted for that subsidiary if the domestic court finds that the putting into circulation of the product in question was,
in fact, determined by that producer.
The dispute between the parties therefore turns on the interpretation of that part of the ECJs judgment.
The Supreme Court unanimously allowed the appeal and set aside paragraph 1 of the order of Teare J dated 20 October 2006 substituting APSA for APMSD in the present action.
Lord Rodger gave the judgment of the Court.
There is nothing to suggest that, when providing the additional guidance which is the subject of the dispute in the present case, the ECJ was intending to depart from the principled approach which it had formulated earlier in its judgment, namely, that Article 11 precluded national legislation being applied in a way which permitted a producer to be sued after the expiry of the ten year limitation period as defendant in proceedings brought within that period against another person (para 17).
In venturing to give the additional guidance, the ECJ was following the lead of the Advocate General.
The Advocate General had given some thought to how Article 11 should be applied in a case like the present, where APSA transferred the Product to a distributor, APMSD, which was its wholly owned subsidiary.
In doing so, the Advocate General had referred back to the ECJs judgment on the first reference where the ECJ had held that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed (paras 18 20).
The ECJ, in its judgment following the first reference, had rejected an approach that was based on the formal legal relationship between the parent manufacturing producer and the subsidiary distributor.
The national court had to look at all the links between the two entities and decide on that basis whether they were so close that, for the purposes of Article 11, the concept of the manufacturing producer (which would apply to APSA) really included the distributor (in this case, APMSD).
In that event, even if the Product were transferred from one to the other, this would not mean that it had been taken out of the manufacturing process operated by the producer (para 22).
The Advocate General made use of that part of the ECJs analysis from the first reference to show when a distribution subsidiary could be so closely involved with the parent producer that they could, in effect, be regarded as one for the purposes of Article 11 (so that suing the subsidiary would be tantamount to suing the parent).
In concrete terms, if that were the position in this case, by suing APMSD within the ten year period, the Respondent would also have sued APSA within that period.
So the Article 11 time bar would not bite and the Respondent could, if he wished, substitute APSA for APMSD as defendant in the present action (para 23).
It is with this background in mind that the ECJ gave its additional guidance in the second reference.
There is nothing to suggest that, in giving that guidance, it was intending to depart in any way from the analysis in its first reference (para 27).
Certainly, to judge from the Advocate Generals analysis, the only way in which the principle that had just been laid down in relation to the substitution of APSA for APMSD could be maintained and yet APSA could be substituted for APMSD would be if, by suing APMSD, the Respondent had in effect sued APSA (para 28).
The ECJ was therefore indicating, in giving its guidance, that the domestic court was to consider, in accordance with domestic rules of proof, whether the manufacturer, APSA, was in fact controlling APMSD and determining when it put the Product into circulation.
The fact that APSA was a wholly owned subsidiary was simply one by no means decisive factor to be taken into
account by the domestic court when assessing how closely the subsidiary was involved with its parents business as a producer.
All the circumstances would have to be taken into account.
If APSA was indeed in a position to decide when the Product was distributed, then APMSD would be integrated into the manufacturing process and would be so tightly controlled by APSA that proceedings against APMSD could properly be regarded as proceedings against the parent company, APSA.
Hence, the manufacturing company could be substituted for the subsidiary (para 34).