UK Law and Practice Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
Where product liability claims are brought in contract, jurisdiction and governing law will usually be deter - mined by the contractual arrangements between the parties, including any choice of court or governing law clauses, subject to mandatory consumer protec - tion rules. 2.5 Pre-Action Procedures and Requirements for Product Liability Claims There is no dedicated pre-action protocol specific to product liability claims. However, parties comply with the general pre-action framework set out in the Civil Procedure Rules, together with any applicable sector- specific protocols. Depending on the nature of the claim, this will com - monly include the Pre-Action Protocol for Personal Injury Claims, the protocol for low-value employers’ liability or public liability claims, or the protocol for disease and illness claims. The applicable protocol will depend on the type of harm alleged and the value and complexity of the claim. The purpose of these protocols is to promote the early exchange of relevant information, enable the parties to investigate the issues in dispute, and encourage settlement without the need for issuing court pro - ceedings. They set out expectations as to the timing and content of pre-action correspondence, including letters of claim and letters of response, and require the parties to consider alternative dispute resolution where appropriate. Failure to comply may result in sanctions. In deter - mining whether to impose such measures, the court will consider the extent of compliance, the impact of any non-compliance on the other party, and whether any breach is material. Sanctions may include cost consequences or a stay of proceedings pending com - pliance. 2.6 Rules for Preservation of Evidence in Product Liability Claims There are no product liability-specific preservation rules in England and Wales. Instead, general duties to preserve evidence arise under the Civil Procedure Rules once litigation is contemplated.
Practice Direction 31 requires parties and their advis - ers to take reasonable steps to preserve documents that may be disclosable in the proceedings. This obligation applies to both paper and electronic mate - rial and includes information that might otherwise be deleted in the ordinary course of business under rou - tine retention or auto-deletion policies. What constitutes reasonable preservation will depend on the circumstances of the case. Relevant factors include the volume and nature of the documents involved, the complexity of the issues, the proportion - ality of preservation efforts, and the likely significance of specific categories of material. In practice, this may involve identifying relevant custodians, preserving defined classes of documents, and suspending auto - matic deletion processes. Preservation obligations are not limited to documen - tary evidence. In product liability claims, they may also extend to physical evidence such as the product itself, components, prototypes, design records and testing materials where these are relevant to the issues in dispute. Non-compliance can have serious consequences. The court has a broad discretion to impose sanctions, which may include adverse inferences, costs penal - ties, restrictions on the use of evidence, or, in serious cases, the striking out of part or all of a party’s claim or defence. 2.7 Rules for Disclosure of Documents in Product Liability Cases There are detailed rules governing the disclosure of documents in product liability proceedings, which are set out in Part 31 of the Civil Procedure Rules. In this context, “disclosure” refers to the obligation to identify documents that exist or have existed, rather than to provide copies in the first instance. A party to whom documents have been disclosed is generally entitled to inspect them, subject to limited exceptions, including where the document is no longer within the disclosing party’s control, is privileged, or where inspection would be disproportionate.
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