UK Law and Practice Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
CPA Defences Section 4 of the CPA contains the principal statutory defences. In summary, a defendant is not liable if it proves that: • the alleged defect is the result of the product meet - ing a requirement imposed by legislation or an assimilated obligation; • it did not put the product into circulation (ie, it did not supply the product to another); • the product was supplied otherwise than in the course of business and it was not produced/ imported/own-branded with a view to profit; • the defect was not present at the “relevant time” (generally, when the product was supplied/put into circulation); • the state of scientific and technical knowledge at the relevant time was not such that a producer of similar products could reasonably have been expected to discover the defect (the “development risks” or “state of the art” defence, which is applied restrictively); or • it supplied a component and the defect is attributa - ble to the design of the finished product into which the component was incorporated, or to compliance of that finished product with instructions given by the component producer. Negligence and Other Common Law Claims Where claims are brought in negligence, defendants can rely on orthodox principles of duty, breach and causation. In particular, a claimant will generally be unable to recover in tort for “pure” economic loss (ie, loss arising solely because the product is of poor qual - ity) in the absence of special circumstances: personal injury or damage to other property is usually required. Continued use of a product after knowledge of a defect, misuse, or failure to follow instructions/warn - ings may break the chain of causation, support a defence of contributory negligence and/or (in appro - priate cases) voluntary assumption of risk. Contract Claims For contract-based claims, parties may seek to rely on limitation or exclusion clauses and other contrac - tual risk allocation provisions. Their effectiveness will depend on construction and statutory controls, includ -
factual complexity, and the extent of any technical or expert evidence required. Lower-value disputes are generally issued in the County Court, whereas higher-value or more com - plex claims (for example, claims where proceedings involve multiple parties, co-ordinated litigation, involve a defendant who is out of jurisdiction or involve signifi - cant evidential complexity) are more commonly issued in the High Court, often within the King’s Bench Divi - sion or a relevant district registry. The court retains a broad discretion to allocate or transfer proceedings between courts where appropri - ate, having regard to proportionality and the efficient administration of justice. This flexibility allows product liability claims to be managed in a forum suited to their complexity and significance. 2.11 Appeal Mechanisms for Product Liability Claims There is no specific appeal framework for product liability disputes; appeals proceed under the general Civil Procedure Rules in the usual way. In practice, the prospects of obtaining permission to appeal in such cases are often limited. This reflects the fact that many product liability determinations – particu - larly those concerning whether a product is defective – are heavily dependent on the trial judge’s assess - ment of detailed factual and expert evidence. Appel - late courts are typically reluctant to interfere with such judgments, unless there is a clear error of law or the conclusion is plainly wrong. Where an appeal does proceed, it will ordinarily focus on alleged errors of law, misapplication of the statu - tory test, or procedural irregularities, rather than a re-examination of the evidence and prospects of the case. Accordingly, while appeals are available, they are comparatively uncommon and can be difficult to advance successfully in this field. 2.12 Defences to Product Liability Claims Defendants in English product liability litigation can rely on the usual defences applicable to the cause of action pleaded, together with a set of statutory defences for strict liability claims under the CPA.
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