UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
in all the circumstances England is clearly or dis - tinctly the appropriate forum. This will include the ground of jurisdiction within which the claim - ant’s claim falls (eg, where England is the place where the contract was made, or the tort was committed), the defendant’s residence or place of business, and the applicable substantive law (eg, the law of the contract). For tortious claims (negligence claims and under the CPA), a claim is made in tort where: • damage was sustained, or will be sustained, within the jurisdiction; • damage that has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction; or • the claim is governed by the law of England and Wales. These requirements are often easily satisfied in product liability claims where the claimant is English, has bought or used the product in Eng - land, and the damage (ie, any personal injury or property damage) was suffered in England. In relation to “applicable law” , the relevant approach depends on the timing of the claim. Where the event giving rise to damage occurred on or after 11 January 2009, Regulation (EC) No.864/2007 on the law applicable to non- contractual relations (the Rome II Regulation) applies, so the general rule is that the applicable law is the law of the country in which the damage occurs – ie, England. In relation to contractual claims, the substan - tive applicable law is the law of England and Wales if England is the place where the contract was made. Furthermore, the contractual terms agreed by both parties ordinarily determine the
applicable law, jurisdiction and location of pro - ceedings in respect of contractual breaches. 2.5 Pre-Action Procedures and Requirements for Product Liability Claims Whilst there is not a single, specific pre-action protocol solely for product liability claims, there are mandatory steps in the form of other appli - cable pre-action protocols in respect of product liability claims that must be complied with prior to the commencement of formal claims. Under the Civil Procedure Rules Practice Direc - tion for Pre-Action Conduct and Protocols, the following Pre-Action Protocols may typically be applicable to product liability claims (depending on the value and complexity of the claim): • Pre-Action Protocol for Personal Injury Claims; • Pre-Action Protocol for Low Value Personal injury (Employers’ Liability and Public Liability) Claims; and • Pre-Action Protocol for Disease and Illness Claims. The common aim in all of the above protocols is to set out the conduct the court would normally expect prospective parties to follow prior to the commencement of proceedings, including: • establishing a reasonable process and timeta - ble for the exchange of early and full informa - tion relevant to a dispute (including disclosure and any expert evidence); • encouraging contact and better and earlier pre-action investigation by all parties; • setting standards for the content and quality of letters of claim and response; and • setting standards for the conduct of pre- action negotiations and ADR.
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