UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
• A defendant is not liable if they can show that “the defect did not exist in the product at the relevant time” (Section 4 (1)(d)). The producer of a car, for example, will not be liable for a defect in the car that did not exist when the car was produced and sold. • A defendant is not liable if they can show that “the state of scientific and technical knowl - edge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control” (Section 4 (1)(e)). This is the “state of the art” defence. Given the obvious concern of the courts that this would water down the “strict” protection given to consumers by the Act, this provision is construed narrowly. • A defendant is not liable if they supplied a product that becomes a component of another product (a subsequent product) and the subsequent product is defective in its design (Section 4 (1)(f)). 2.13 The Impact of Regulatory Compliance on Product Liability Claims As noted in 2.12 Defences to Product Liability Claims , a defendant is not liable under the Con- sumer Protection Act 1987 if they can show that “the defect is attributable to compliance with any requirement imposed by or under any enactment or with any assimilated obligation” (Section 4 (1) (a)). In practice, this defence does not commonly arise, because strict compliance with an enact - ment is unlikely to lead directly to the existence of a defect in a product. A more controversial question is whether a defendant can rely on the fact that a product has obtained regulatory approval as a defence to a claim that the product is defective. Under the 1987 Act, a product is defective “if the safety
of the product is not such as persons generally are entitled to expect” (Section 3 (1)). Where a regulator allows a product (eg, a pharmaceutical product with a list of known side effects) to be placed on the market, such regulatory approval is relevant in assessing whether legitimate safety expectations: see the discussion in Gee v Depuy [2018] EWHC 1208 (QB) at paragraphs 170–178. 2.14 Rules for Payment of Costs in Product Liability Claims There are no specific rules on costs in relation to product liability claims; the normal rules on costs apply. Where a claimant has suffered a personal injury, the rules on Qualified One-Way Costs Shifting provide the claimant with protection against the risk of paying a defendant’s costs. Where a product liability action is subject to a Group Litigation Order (GLO), costs are divided between “individual costs” (costs incurred in relation to an individual claim on the group regis - ter) and “common costs” (mainly costs incurred in relation to the GLO issues and costs incurred by the lead legal representative in administering the group litigation). Under CPR Rule 46.6, the default position is that any order for common costs against group litigants imposes several liability on each group litigant for an equal proportion of those common costs. 2.15 Available Funding in Product Liability Claims Product liability actions do not themselves attract any specific funding rules. However, many product liability actions are run as large group actions, in which solicitors act under Con - ditional Fee Agreements, or where large com - mercial funders stand behind the action. Many product liability actions that arise out of dam -
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