UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
age to property (eg, fires and floods) caused by a defective product will be subrogated actions brought by, and funded by, insurance compa - nies. 2.16 Existence of Class Actions, Representative Proceedings or Co- Ordinated Proceedings in Product Liability Claims Large class actions are commonly encountered in product liability actions. Several of the most substantial product liability claims in England and Wales in the last few decades have been large group actions, arising out of defective medical products, such as pharmaceuticals or prosthetics. The diesel emissions litigation is currently one of the largest ever group actions in England and Wales, with over 1.5 million claim - ants, subject to different Group Litigation Orders against various manufacturers of diesel vehicles. 2.17 Summary of Significant Recent Product Liability Claims It remains comparatively rare for product liabil - ity cases to reach trial, and there have been no major decisions in the field of product liability in the last 12 months. The most significant litigation in the field at pre - sent is the Diesel NOx Emissions litigation, in which it is alleged that diesel vehicles produced by a range of manufacturers contained “Prohib- ited Defeat Devices” (PDDs) within the meaning of the Emissions Regulation 715/2007. Several pieces of group litigation are being case man - aged together, with over 1.5 million claimants, and the question of whether PDDs are present in a selection of sample vehicles drawn from a pool of five manufacturers will be determined at a trial of preliminary issues in Autumn 2025. That trial is also expected to decide various points of law, including a question relating to whether any
breach of statutory duty proven by the claim - ants is actionable. Other issues, including some aspects of quantification, are due to be tried in 2026. For those working in the product liability sphere, it is a key piece of litigation to watch over the coming 12 months. In terms of decided cases, most recent cases have tended to turn on their own facts in relation to claims in contract or tort. The most signifi - cant cases in recent years are the run of cases concerning the Consumer Protection Act 1987 in the context of medical devices, which have provided much-needed and clear guidance on the question of what amounts to a defect, and how a claimant may prove their case. Hastings v Finsbury and Stryker [2022] UKSC 19 was the first Supreme Court decision to con - sider the CPA in detail. In that case, the appel - lant sought to argue that defect could be estab - lished by adducing “prima facie evidence” that might suggest the presence of a defect, which the defendant must then rebut. This would have resulted in at least a partial reversal of the bur - den of proof. However, the Court affirmed the position that the burden of proof rests on the consumer to establish a defect and a causal link to the injury. Whilst “prima facie evidence” could form part of the patchwork of facts that a judge was entitled to take into account when determining whether a product was defective, such evidence did not have the effect of provok - ing a reversal of the burden of proof. Instead, a court must consider whether a claimant has established the presence of a defect in all the circumstances. This cemented the approach taken by the High Court in Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB) and Gee v DePuy International Ltd (The DePuy Pinnacle Metal on Metal Hip Liti -
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