UK Law and Practice Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
Legal Aid Public funding for civil claims is limited and is not gen - erally available for product liability litigation, subject to means/merits and any exceptional case funding in rare circumstances. 2.16 Existence of Class Actions, Representative Proceedings or Co-Ordinated Proceedings in Product Liability Claims Collective and co-ordinated proceedings are well established in product liability litigation in England and Wales. The courts have developed flexible procedur - al mechanisms to manage large numbers of related claims efficiently. The primary mechanism is the Group Litigation Order (GLO), which may be made where multiple claims give rise to common or related issues of fact or law. A GLO establishes a group register and provides for the co-ordinated management of proceedings, includ - ing common directions on disclosure, expert evidence and the determination of shared issues. In practice, one or more “lead” or “test” cases are selected to proceed first, with other claims stayed pending the outcome, enabling issues of defect, causation or reg - ulatory compliance to be resolved efficiently. GLOs have been used extensively in product-relat - ed group actions, particularly in relation to allegedly defective pharmaceuticals, medical devices and other mass-produced consumer products. More recently, large-scale litigation such as the diesel emissions claims has demonstrated the courts’ capacity to manage exceptionally large claimant cohorts through structured case management, even where claims raise complex technical and evidential issues. In addition to GLOs, representative actions under CPR 19.8 are available in limited circumstances where mul - tiple claimants share the “same interest” in the claim. However, historically these have been used sparingly in product liability cases given the need for individu - alised assessments of causation and loss. Even where formal collective procedures are not invoked, the courts frequently hand down bespoke case management orders to co-ordinate related prod - uct liability claims, including consolidation, transfer
Under a CFA, the solicitor’s base costs are payable only if the claim succeeds, and the solicitor may also charge a “success fee” (an uplift on base costs) to reflect the risk of non-payment. Since the LASPO reforms, success fees are generally payable by the client (rather than being recoverable from the oppo - nent), subject to specific statutory caps in personal injury claims at first instance. Damages-Based Agreements (DBAs) (Contingency Fees) Contingency fee arrangements are permissible through DBAs, under which a representative’s fee is calculated by reference to a percentage of the dam - ages recovered. DBAs are less common than CFAs in product liability litigation but may be used in suitable cases. Statutory limits apply to the percentage that can be taken from damages (including (for example) a 25% cap in personal injury claims and a 50% cap in most other claims at first instance). After-the-Event (ATE) Insurance and Legal Expenses Insurance ATE insurance is frequently used alongside CFAs and (where relevant) third-party funding to cover disburse - ments and to protect against adverse costs exposure (subject to the QOCS regime in personal injury claims). Before-the-event legal expenses insurance may also be available to some claimants (for example, under household or motor policies), although it is not uni - versal. Third-Party Litigation Funding Third-party litigation funding is permitted and is most often seen in complex, high-value product litigation (particularly group claims), where the costs of expert evidence, disclosure and case management can be substantial. Funders typically provide non-recourse funding for some or all of the claimant side’s costs in return for an agreed return if the case is successful, and they will commonly require ATE insurance to be in place to address adverse costs risk. The market operates on a largely self-regulatory basis (including through the Association of Litigation Funders’ Code of Conduct), although the regulatory landscape remains an area of active policy focus.
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