Some people have suggested that when the House of Lords becomes our Supreme Court in just over a year, it should abandon the practice of judges giving individual judgments, sometimes disagreeing with each other, which means lawyers have to work out exactly who’s won, and on what points. The suggestion is that the new court should adopt a single, agreed judgment, like the European Court of Justice does. There is a reformist, liberal trend in legal thinking in this country that seems always to think what’s done on the continent is better; it’s not always based on any actual knowledge or experience of the rest of Europe. As it happens, reformists elsewhere often hold up the British model as the ideal – only a few weeks ago I read a letter in the Austrian press from a lawyer arguing that their constitutional court judges should give individual judgments, as they do in England and the US.
If you need to be warned about the dangers of judgment written by committee, look at yesterday’s Lords judgment in O’Byrne v Aventis.
A child suffered brain damage and through his mother is suing the firm who made the vaccine they think is responsible, under legislation giving effect to the Product Liability Directive. But due to a simple mistake, initially the claim was made, in 2000, against the UK subsidiary Aventis Pasteur Ltd., which technically was only the UK distributor; the actual manufacturer was Aventis Pasteur SA, the French parent company. No problem there – the Civil Procedure Rules permit substitution of a new defendant where there’s been a simple mistake like that. Except that Aventis objected, arguing that the Directive precludes this. Article 11 provides a long-stop limitation period: after a product has been marketed for ten years, the manufacturer is safe from action except from those who’ve already commenced proceedings against them. So, Aventis argues, since O’Byrne only commenced against the distributor, and the ten years have now expired… article 11 bars the claim.
So, the court made a reference to the European Court asking in effect whether the Directive permits correction of a mistake like this. The ECJ gave its judgment over two years ago – the only problem being that it’s difficult to tell what answer it gave. It’s for the UK to determine whether one party can be substituted for another, it said; but it also said the Directive lays down an exhaustive list of who is to be regarded as the manufacturer, and national courts must have due regard to the scope of the Directive. It’s an opaque, unhelpful and self-contradictory ruling, showing what can happen when a judgment is cobbled together in negotiations rather than being the product of one mind.
The Lords have found themselves unable to give effect to the ECJ’s judgment because they don’t know what it means. They’ve therefore referred the questions again to the ECJ for clarification. So another few years will be added to the length of this litigation, and the family will be forced to live with this for so much longer than necessary. What an indictment of the Dickensian state of law today.
Apart from the shameful role of the ECJ in this, I also wonder what our courts have been up to in referring this, to be honest. In my view, purposive interpretation of the Directive – which plainly aims at consumer protection and striking a fair balance of risk between consumer and producer, and which also clearly aims at freeing claimants from choosing between potentially liable defendants – cannot result in a reading that precludes substitution. I find it difficult to see how any court could think otherwise or need to ask the ECJ. But the machine rolls on.
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