UK Law and Practice Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
to a single court or judge, and aligned timetables for disclosure and expert evidence. Taken together, these mechanisms allow complex, multi-party product liabil - ity disputes to be litigated in a structured and pro - portionate manner and are regularly used in practice where the scale or complexity of claims justifies a co- ordinated approach. 2.17 Summary of Significant Recent Product Liability Claims It remains relatively uncommon for product liability claims in England and Wales to progress to final trial, particularly under the CPA. As a result, there have been few recent decisions fundamentally reshaping the law. Nonetheless, a small number of major pro - ceedings and authorities continue to shape how key statutory concepts – particularly defect, causation and burden of proof – are understood in practice. One of the most significant ongoing matters is the die - sel NOx emissions litigation, which concerns allega - tions that diesel vehicles manufactured by a number of producers incorporated “prohibited defeat devices” within the meaning of Regulation (EC) 715/2007. The litigation comprises multiple co-ordinated group actions, involving in excess of one million claimants, which are being case-managed together. A six-month trial of preliminary issues has recently taken place to determine whether sample vehicles from a group of manufacturers were fitted with prohibited devices and, importantly, whether any breach of statutory duty gives rise to a private right of action and recoverable loss. Judgment is expected in Summer 2026, which is likely to have a significant impact on the interaction between regulatory compliance, statutory duties and liability in large-scale product claims. In terms of decided cases, the most important recent guidance on the interpretation of the CPA continues to derive from litigation concerning medical devices. The leading authority is Hastings v Finsbury Orthopae- dics Ltd and Stryker UK Ltd [2022] UKSC 19, which remains the most recent detailed consideration by the Supreme Court of the CPA regime. The Court rejected arguments that defect could be established by show - ing a prima facie case which then shifted the burden onto the producer. Instead, it reaffirmed that the claim -
ant bears the burden of proving, on the balance of probabilities, that the product was defective and that the defect caused the damage complained of. While circumstantial or inferential evidence may form part of the overall evidential picture, it does not alter the statutory burden of proof. The Supreme Court’s reasoning in Hastings confirmed and reinforced principles developed at first instance in earlier High Court decisions concerning hip pros - theses, most notably Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB) and Gee v DePuy Inter- national Ltd [2018] EWHC 1208 (QB). Those cases remain highly influential in identifying how courts should assess whether a product falls below the level of safety that persons are generally entitled to expect. Together, they emphasise that the assessment of defect is highly fact-sensitive and requires a holistic evaluation of all relevant circumstances, rather than the application of rigid categories. In Gee , the High Court clarified a number of key aspects of the defect analysis under the CPA. These include the need for a flexible approach to safety expectations, the potential relevance of the prod - uct’s benefits and known risks, and the rejection of a strict distinction between standard and non-standard products. The court also confirmed that warnings and instructions, including those provided to learned inter - mediaries such as clinicians, may be relevant to the defect assessment. While there has been limited new appellate authority in the past year, the existing body of case law on medi - cal devices continues to provide the clearest judicial guidance on the meaning of “defect”, the evidential burden on claimants, and the relevance of regulatory compliance – principles that are likely to remain cen - tral as future claims arise in relation to increasingly complex and technology-driven products. 3. Recent Policy Changes and Outlook 3.1 Trends in Product Liability and Product Safety Policy UK product liability and product safety law has contin - ued to develop incrementally over the past year rather
302 CHAMBERS.COM
Powered by FlippingBook