O’Byrne v Aventis Pasteur SA [2007] EWCA Civ 939, [2007] All ER (D) 114 (Oct)
Section 35(6) of the Limitation Act 1980 provides that the addition or substitution of a new party cannot be regarded as necessary unless:
(i) there was a relevant mistake; or
(ii) an existing claim against the original party could not be maintained without the joinder or substitution of the new party. Thus, if there was either a mistake of a kind sufficient to satisfy (i) or the kind of necessity identified in (ii), then the test of necessity in s 35(5) is satisfied, but not otherwise. A party may therefore be substituted under s 35 where the 10-year limitation period for making a claim for damages caused by a defective product has expired, even where the correct party was known to the claimant before the limitation period expired, if the claimant had made a mistake about the name of the defendant and substitution was necessary for the purpose of determining the original
action.
