ECJ to clarify whether Directive allows courts to substitute a party after limitation period expires

In Ob v Aventis Pasteur SA Appellate Committee [2008] UKHL 34, the House of Lords considered whether Article 11 of the European Product Liability Directive 85/374/EEC (the Directive) precluded a party from being substituted as defendant in proceedings after the expiry of the 10 year long-stop date.

At first instance, the claimant had successfully applied under CPR 19.5 to substitute another party (APSA) for the original defendant. The Court of Appeal upheld that decision, applying an earlier decision of the ECJ. We reported this in Legal update, Directive allows national courts to apply domestic law on substitution after limitation period expires.

On appeal, the House of Lords found that the earlier ECJ judgment left scope for reasonable doubt as to its application in this case. Therefore, their Lordships made a further referral to the ECJ. It is hoped that the ECJ's decision will clarify the relationship between section 35 of the Limitation Act 1980 and Article 11 of the Directive.