UK Law and Practice Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
ing the Unfair Contract Terms Act 1977 (for business- to-business contracts) and the Consumer Rights Act 2015 (for consumer contracts). In particular, liability for death or personal injury caused by negligence cannot be excluded. 2.13 The Impact of Regulatory Compliance on Product Liability Claims Regulatory compliance can be important in product liability cases, but it is not determinative. The CPA provides a defence where the alleged defect arises because the product was required to comply with a mandatory legal rule; in reality, that defence is rarely used because most regulatory regimes set minimum safety standards rather than prescribing the precise design solution. More often, compliance and regulatory clearance are relied on as part of the wider evidential picture when the court assesses whether a product is “defec - tive”. The statutory question is whether the product provided the level of safety that people are generally entitled to expect, and evidence that the product met applicable regulatory requirements may inform (but not dictate) those expectations. The court will weigh regulatory material alongside all other relevant circumstances, including the product’s characteristics, the nature and seriousness of the risks, and the content and adequacy of warnings and instructions. In highly regulated sectors (notably phar - maceuticals and medical devices), regulatory approval may carry substantial evidential weight – particularly where known risks have been appropriately disclosed and managed – but it does not operate as a complete defence to liability. 2.14 Rules for Payment of Costs in Product Liability Claims Costs in product liability litigation follow the general civil costs rules. As a starting point, the court will usu - ally deal with costs at the end of the proceedings and will typically order the unsuccessful party to pay the successful party’s costs. In personal injury claims, Qualified One-Way Costs Shifting (QOCS) generally protects claimants from having to pay the defendant’s costs, subject to statu -
tory and rule-based exceptions (including where the claim is fundamentally dishonest, and where the claimant fails to obtain a result more advantageous than a defendant’s Part 36 offer). Claimants may also obtain after-the-event (ATE) insurance with an appro - priate indemnity limit to cover any residual adverse costs risk. Where claims are pursued on a coordinated basis under a Group Litigation Order (GLO), costs are com - monly categorised as: • individual costs (incurred in relation to a particular claimant’s claim); and • common costs (incurred for the benefit of the group as a whole). Under CPR 46.6, responsibility for common costs is normally shared equally between claimants on the group register unless the court directs a different approach. Given the scale and complexity of group litigation, common costs can be significant. Ultimately, costs awards are discretionary. A success - ful party will commonly recover its costs on the stand - ard basis (to be assessed if not agreed), but the court may order costs on an indemnity basis in appropriate cases – for example, where a party’s conduct is criti - cised or it has unreasonably refused to participate in alternative dispute resolution (ADR). In practice, full recovery is unusual: even where a party “wins”, the amount recovered is often reduced through negotiation between the parties and/or on detailed assessment. 2.15 Available Funding in Product Liability Claims A range of private and third-party funding options are available for product liability litigation in England and Wales, and these mechanisms are commonly used in practice (particularly in higher-value claims and group litigation). Conditional Fee Agreements (CFAs) (“No Win, No Fee”) CFAs are widely used, including for product-related personal injury claims and claimant-led group actions.
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