THE 10 YEAR LONGSTOP PERIOD IN PRODUCT LIABILITY CLAIMS: A POINT TO WATCH

There is one very tricky area of limitation law that I wanted to return to following the judgment in Coote -v- Ullstein [2022] EWHC 606 (QB). The case was looked at in detail here.  However I want to concentrate on the underlying limitation issue that had caused the problem in the first place.

THE CASE

The claimant had pursued an action against the manufacturers of the MMR vaccine, alleging that it had caused her epilepsy.  That action became statute barred and she brought this action against her former solicitors and Leading Counsel.

THE REASON THAT THE ACTION BECAME STATUTE BARRED

The judge explained how the limitation period came to be missed.

“It would appear (and I put it this way as it is not conceded by the Defendants in the professional negligence litigation) that the Defendants had believed that the ten year limitation period under the Consumer Protection Act 1987 ran from the date that the vaccine had been administered to the patient. It was subsequently discovered that the limitation period ran from the date the vaccine was shipped from the factory, in this case on 14th December 1988. This meant that the writ had been issued out of time and there was no provision to permit the extension of time or any suspension of the limitation period based on the Claimant’s disability. The allegation of negligence in the professional negligence proceedings is therefore that the Defendants failed to advise the Claimant accurately about the limitation period under the Consumer Protection Act 1987 with the result that her claim against SKB was issued out of time and therefore doomed to failure. “

THE TEN YEAR “LONGSTOP” PERIOD UNDER THE ACT

Schedule 1 of the Consumer Protection Act gives a “longstop” provision at 1 (3)

“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 of 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.”

“RELEVANT TIME” IN THE ACT

(2)In this section “the relevant time”, in relation to electricity, means the time at which it was generated, being a time before it was transmitted or distributed, and in relation to any other product, means—

(a)if the person proceeded against is a person to whom subsection (2) of section 2 above applies in relation to the product, the time when he supplied the product to another;

(b)if that subsection does not apply to that person in relation to the product, the time when the product was last supplied by a person to whom that subsection does apply in relation to the product.

THE ISSUE IN COOTE

The issue in Coote, which was never determined, appears to be that the claimant’s then solicitors thought that the limitation period started when the product was administered. However the 10 year period runs from the date of production/shipping and not administration.

A NICHE POINT I KNOW

It is the unusual nature of these provisions, and the fact that practitioners will rarely come across these issues, that mean that this point needs highlighting.