New Judgment: OB (by his mother and litigation friend) v Aventis Pasteur SA  UKSC 23
26 Wednesday May 2010
On appeal from:  EWCA Civ 966
The respondent brought a claim for damages following a defective vaccination, which was defended on the basis that the claim had been raised more than 10 years after the appellant had brought the product into circulation (and was therefore time-barred under Art 11 of Council Directive 85/374/EEC). The respondent had also brought proceedings against a subsidiary company, the distributor of the vaccine, and sought to substitute the appellant for its subsidiary in those proceedings. Held, unanimously allowing the appeal. The guidance of the ECJ was that a domestic court must consider whether the manufacturer was in fact whole controlling the distributor and determining whether the product went into circulation. In such circumstances, then proceedings against the distributor could properly be regarded as proceedings against the parent company, hence allowing the manufacturer to be substituted for the subsidiary.