UK Law and Practice Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
The scope of standard disclosure is defined by CPR Rule 31.6. Parties are required to disclose the docu - ments on which they rely, those which adversely affect their own case or another party’s case, and those which support another party’s case, as well as any documents required to be disclosed by a relevant practice direction. The obligation is ongoing and con - tinues until the end of the claim. Specific considerations arise in relation to electronic documents, which are now central to most disputes. Practice Directions 31A and 31B provide additional guidance, particularly in cases allocated to the multi- track. These provisions are intended to promote a pro - portionate and efficient approach to the identification, review and disclosure of electronic material. Where a party seeks disclosure of electronic documents that are not readily accessible, it may be necessary to demonstrate their relevance in order to justify the time and expense involved in retrieval of those documents. 2.8 Rules for Expert Evidence in Product Liability Cases The use of expert evidence in product liability pro - ceedings is governed by Part 35 of the Civil Procedure Rules, together with its associated Practice Direction and supplementary guidance. The court retains control over the use of expert evi - dence, and such evidence is limited to what is reason - ably required to resolve the issues in dispute. A party may not rely on expert evidence without the court’s permission, and the court may restrict the number of experts to be used in the case. An expert’s primary duty is to the court, not to the par - ty who instructed them. Expert evidence is typically provided in the form of a written report, which must comply with the requirements set out in the Practice Direction, including confirmation of the expert’s inde - pendence and details of the material the expert has relied upon in forming their opinion. The rules also provide for procedural mechanisms to narrow the issues between the experts. These may include written questions to experts and joint meet - ings between opposing experts, with a view to pro -
ducing a joint statement identifying areas of agree - ment and disagreement, together with reasons. Given the technical nature of many product liability claims, expert evidence often plays a key role, particu - larly in relation to defect, causation and quantum. The court will, however, seek to ensure that such evidence remains proportionate. 2.9 Burden of Proof in Product Liability Cases The burden of proof in product liability claims in Eng - land and Wales rests with the claimant. In claims brought under the CPA, the claimant must establish, on the balance of probabilities, that: • the product was defective; • the claimant suffered damage; and • the defect caused the damage complained of. The legal burden of proof does not shift to the defend - ant. However, the evidential position may develop dur - ing the course of proceedings. In practice, claimants frequently rely on circumstantial evidence and expert evidence to support allegations of defect and cau - sation. Where such evidence is sufficiently cogent, a defendant may be required to advance an alternative explanation, although the ultimate burden of proof remains with the claimant throughout. Causation is often a key issue in dispute. The claim - ant must demonstrate that the damage would not have occurred but for the alleged defect, applying established principles of causation under English law. Given the technical and scientific issues commonly involved, expert evidence typically plays a decisive role in addressing both defect and causation. While the statutory framework is relatively straightfor - ward in principle, its application is highly fact-specific and depends on the quality, consistency and interac - tion of the available evidence. 2.10 Courts in Which Product Liability Claims Are Brought Product liability claims are issued within the ordinary civil court structure in England and Wales. The choice of court is driven by the value of the claim, its legal and
298 CHAMBERS.COM
Powered by FlippingBook