Product Liability Comparative Guide

1 Product liability regimes

1.1 What are the legal regimes under which consumers who are injured by a defective product can bring a claim for compensation? What is the most common way in which such product liability claims are brought?

The EU Product Liability Directive (85/374/EEC) was implemented in the United Kingdom by the Consumer Protection Act 1987 (CPA). This introduces a no-fault liability regime to enable persons injured by a defective product to seek compensation from the producer of that product. This is the most common regime for product liability claims.

In addition to such claims under the CPA, injured persons can bring product liability claims in the tort of negligence or in breach of contract.

In some cases, a product liability claim may be brought for breach of statutory duty – for example, for breach of a safety regulation under Section 41 of the CPA.

1.2 Do any special regimes apply in specific sectors?

Not for product liability claims

1.3 Are the courts in your jurisdiction generally considered sympathetic to claimants in product liability suits?

The UK courts will normally be expected to apply the legal principles rigorously and according to the relevant evidence before them. This means that a defendant with a strong case on the law and evidence should have at least some level of confidence that it will successfully defend the case, without the result being influenced by other factors.

However, defendants in product liability cases are wise to recognise that the sympathy of the court will often be with a consumer who claims to have been injured by a defective product manufactured or sold by a large corporation, and in such cases the court may be inclined to interpret the evidence – or any ambiguities in the law – in favour of the consumer.

2 Parties

2.1 Can representative bodies bring product liability suits in your jurisdiction on behalf of groups of consumers? If so, which bodies may do so and what is the applicable procedure?

Generally, no. However, under Part 8 of the Enterprise Act 2002 and Schedules 5 and 13 of the Consumer Rights Act 2015, certain UK regulators – including the Competition and Markets Authority – and persons with a genuine interest can bring proceedings against traders for certain breaches of consumer protection laws that harm the collective interests of consumers. Remedies can include injunction and/or redress including compensatory damages for consumers. This mechanism does not extend to cover claims for product liability under the Consumer Protection Act 1987 (CPA).

See also question 2.2 regarding representative actions.

2.2 Are class actions or other forms of collective action available in your jurisdiction? If so, what restrictions and requirements apply in this regard? Are they commonly used?

Yes. Claims in England and Wales can be brought:

• by bringing individual claims that are collectively managed under a group litigation order (GLO); or
• by bringing a same interest representative claim.

The court in England and Wales can make a GLO to provide for the efficient management of claims which give rise to common or related issues of fact or law. A GLO:

• must specify the 'GLO issues' that arise in each of the similar claims; and
• will establish a group register onto which all claims covered by the order should be put.

A judgment relating to any of the GLO issues will be binding on all parties that are on that group register. The court has wide discretion as to the procedures that it will implement for the management of the claims, which usually include trials to determine preliminary issues and/or test cases.

Same interest representative proceedings can be used when more than one person has the same interest in a claim. In those circumstances, the court may order that a single claim be brought by one or more people acting as representatives of any other person that has that interest. Again, any judgment can be binding on all represented parties.

Certain UK regulators – including the Competition and Markets Authority – and persons with a genuine interest are empowered under Part 8 of the Enterprise Act 2002 and Schedules 5 and 13 of the Consumer Rights Act 2015 to bring proceedings against traders for certain breaches of consumer protection laws that harm the collective interests of consumers. These mechanisms permit the seeking of an injunction and/or redress including compensatory damages for consumers. They are limited to certain breaches of consumer and competition law only and this mechanism does not extend to cover claims for product liability under the CPA.

2.3 Which parties may potentially be held liable for defective products in your jurisdiction?

Consistent with the Product Liability Directive, liability under the CPA is imposed upon the 'producer' of the defective product. In summary, this will be:

• the person that manufactured the product;
• a person that holds itself out as the producer by placing its name or trademark on the product;
• if the product was not manufactured in the United Kingdom, the importer of the product into the United Kingdom; or
• a supplier or distributor that fails to identify an entity within the above categories or disclose who supplied them with the product within a reasonable time after a request by the claimant.

These entities can be held jointly and severally liable and the claimant can choose to sue one or all of them.

A product liability claim in negligence can be brought against a party that bears responsibility for the defect or for the injury suffered by the claimant. This will normally be the manufacturer or retailer; but other parties can be sued if the claimant can establish that:

• the party owed a duty of care in relation to the supply of the product; and
• the claimant was injured as a result of a breach of that duty of care (subject also to rules of remoteness).

If a claim is brought for breach of contract, the defendant will normally be the party that supplied the product to the end user (eg the retailer).

2.4 Can parties outside the jurisdiction be the target of a product liability suit? What requirements and restrictions apply in this regard?

Yes, parties outside the United Kingdom can usually be sued in the UK courts where the damage was sustained in the United Kingdom. There are procedural rules governing the service of process on parties outside the jurisdiction.

3 Basis for liability

3.1 What are the most common grounds for action in your jurisdiction where a consumer is claiming damages for injuries caused by a defective product?

See question 1.1.

3.2 Can criminal penalties be imposed for the manufacture or sale of defective products?

Yes, a manufacturer can be subject to criminal penalties if it places on the UK market a product that does not meet applicable requirements of safety regulations.

In certain circumstances, sellers can also bear criminal liability for the sale of such products, although the liability is typically not as strict as it is for the manufacturer of the product.

The penalties for the sale and distribution of an unsafe product include fines and/or imprisonment.

See question 17.

4 Defective products

4.1 How is a 'defective product' defined in your jurisdiction?

The Consumer Protection Act 1987 (CPA), consistent with the Product Liability Directive, provides that a product is defective if it does not provide the level of safety that persons generally are entitled to expect, taking into account all relevant circumstances, including:

• the manner in which and the purpose for which the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
• what might reasonably be expected to be done with or in relation to the product; and
• the time when the product was supplied (a product is not unsafe just because a safer product was subsequently developed or because industry safety standards were raised after the product was supplied).

The concept of 'defect' is an objective standard in relation to a consumer's legal entitlement, rather than the actual expectations of the claimant, or of a notional group of consumers. There are no restrictions on the relevant circumstances that can be taken into account.

To establish a claim in negligence in a product liability case, the claimant must prove the following:

• The defendant owed the claimant a duty of care;
• The defendant breached that duty;
• The breach caused the damage; and
• The damage was reasonably foreseeable.

A product liability claim based on breach of contract may relate to an express term and/or an implied term of the contract. Under the Consumer Rights Act 2015, various terms are implied into a contract for the sale of goods between a business and a consumer. For example:

• goods must be of a satisfactory quality;
• goods must be fit for a particular purpose, if that purpose was made known to the trader (expressly or by implication) before the contract was concluded; and
• goods must be as described.

4.2 What are the standards for proving that a product is defective? Who bears the burden of proof? Is it possible to shift the burden of proof?

The claimant bears the burden of proving that the product is defective under the CPA. The standard is on the balance of probabilities, which is a lower standard than in criminal law matters, where the case must be made out beyond all reasonable doubt. The same principles apply to claims in negligence.

In respect of claims for breach of the statutory warranty under the Consumer Rights Act, there is a presumption to make it easier for consumers to bring claims – that any lack of conformity that becomes apparent within six months of the date of delivery of the goods is deemed to have existed at the time of delivery of the goods. The burden of proof rests on the seller to prove the contrary.

In some circumstances where a product has failed unexpectedly and in a dangerous manner, the court might infer from those facts that, on the balance of probabilities, the failure was caused by a defect in the product under the CPA, even if a precise defect cannot be identified.

4.3 What are the standards for proving the causal link between the product defect and the damage suffered established? Who bears the burden of proof? Is it possible to shift the burden of proof?

Under the CPA and for claims in negligence, the claimant also bears the burden of proving the causal link between the defect and the damage. Again, the standard is on the balance of probabilities.

4.4 What else must be proven to succeed in a product liability action? What specific concerns and considerations should be borne in mind in this regard?

For claims under the CPA, the claimant will succeed if he or she can prove that:

• the product had a defect;
• he or she suffered injury; and
• the defect caused the injury.

For claims in negligence, it may not be sufficient simply to prove those matters. The claim will succeed only if the claimant can prove breach of a duty of care owed by the defendant. The injury must have been reasonably foreseeable and the damages not too remote.

5 Defences and limitations

5.1 What is the limitation period for bringing a product liability suit in your jurisdiction? What requirements and restrictions apply in this regard?

The applicable limitation period for claims under Part I of the Consumer Protection Act 1987 (CPA) is three years from the later of:

• the date on which the cause of action came into existence; or
• the date of knowledge of the claimant or of any person in whom the cause of action was previously vested, if earlier.

There is an overarching longstop under the CPA which provides that any right is extinguished 10 years after the date on which the defective product was supplied.

For claims in negligence and for breach of contract, including claims under the Consumer Rights Act, there is a limitation period of six years for actions for damages other than personal injury. For personal injury claims, the limitation period is three years from the date on which the cause of action came into existence or the date of knowledge (if later) of the injured person. There is a 15-year long stop for negligence claims not involving personal injury, calculated from the date of the negligent act or omission.

5.2 What defences to product liability suits are available in your jurisdiction?

There are various defences available in respect of claims brought under the CPA. These include the following:

• The defect was not discoverable having regard to the state of scientific and technical knowledge at the time (known as the 'development risks defence'). This defence has generally been narrowly construed by the courts, but nevertheless is often pleaded in product liability cases;
• The defect is attributable to compliance with any requirement imposed by law;
• The defendant did not supply the product to another;
• The only supply of the product by the defendant was otherwise than in the course of its business and not with a view to profit;
• The defect did not exist in the product at the time it was supplied;
• In the case of component manufacturers, the defect is wholly attributable to:
• • the design of the product in which the component was fitted; or
  • compliance by the component manufacturer with instructions given by the producer of the final product; or
• The product contains obvious and unavoidable risks. The labelling, instructions and warnings provided will be relevant in the court's assessment of this defence.

For claims under the CPA, the damage can be reduced if the defendant can prove that the damage was partly due to the fault of the claimant.

For a claim in negligence or contract, available defences include:

• consent;
• exclusion of liability;
• the claimant's own wrongdoing;
• necessity; and
• contributory negligence.

5.3 Can a party exclude or limit its liability for defective products in your jurisdiction? If so, how? What specific concerns and considerations should be borne in mind in this regard?

Generally, it is not possible to exclude liability:

• under the CPA; or
• for personal injury or death in negligence.

There are also limitations on exclusion of liability for contractual claims, especially in consumer contracts. Liability risks can be managed to a degree by:

• making appropriate disclosures;
• giving adequate warnings; and
• obtaining relevant acknowledgements from the consumer.

There is much greater scope to limit or exclude product liability in business-to-business contracts, and in those cases it can be important for a product supplier to take care to ensure that the terms of sale are clear and adequate.

6 Forum

6.1 In what forum(s) are product liability suits heard in your jurisdiction?

Product liability claims can be dealt with at all levels of the court system in the United Kingdom, with jurisdiction and forum determined by

• the value of the case; and
• other factors, such as complexity.

6.2 Who hears product liability suits in your jurisdiction (eg, judges or juries)?

Juries are not available for product liability cases in the United Kingdom. All cases are heard by magistrates/judges.

6.3 Is there any opportunity for forum shopping in your jurisdiction? If so, what are the implications?

Generally, there is little scope for forum shopping in the UK system. A claimant will have some discretion to choose the specific court in which the claim is filed – for example, particularly complex claims might be heard in the Technology and Construction Court. For the most part, regional issues are not a significant factor, aside from considerations of:

• the convenience of the parties;
• the extent of delays; and
• the availability of judges.

7 Filing a product liability suit

7.1 What are the formal, procedural and substantive requirements for filing a product liability suit? How does this process typically unfold and what is the timeframe?

In England and Wales, formal proceedings are commenced by filing a claim form (in the prescribed format) at court. The claim form must include:

• the names and addresses of the parties; and
• brief details of the claim, including its value.

Detailed information regarding the claim:

• may also be included in the claim form; or
• for more complex claims, may be set out separately in a particulars of claim.

A court fee will be payable when the claim form is filed, unless the claimant is exempt due to his or her financial circumstances. The amount of the court fee will be determined by the value of the claim.

Once the claim form has been filed at court, the claimant must serve it on the defendant within four months of filing. If detailed information regarding the claim has been set out in a separate particulars of claim, this must also be served on the defendant within 14 days of service of the claim form.

Once served, the defendant must respond within 14 days. If the defendant disputes the claim, it may either:

• file and serve a defence within 14 days; or
• if more time is required to prepare the defence, file and serve an acknowledgement of service (in a prescribed form).

If the defendant files and serves an acknowledgment of service, it has 28 days from the date of service of the claim form (or particulars of claim, if used) to file and serve its defence.

7.2 Do any pre-filing requirements apply before commencement of the suit?

In England and Wales, there are certain pre-action procedures that the parties are expected to follow before formal proceedings are commenced. These are set out in various pre-action protocols, including:

• a pre-action protocol for personal injury claims; and
• a pre-action protocol for low-value personal injury (employers' liability and public liability) claims.

Generally, these protocols require the claimant to supply sufficient information regarding the claim, together with any key pieces of evidence available, to allow the defendant to evaluate the claim and consider its position. The defendant is required to respond within a reasonable time, which is:

• 14 days in a straightforward case; and
• no more than three months in a very complex case.

There are consequences for failing to comply with the pre-action protocols and not engaging with the other party. In particular, the court can:

• make case management directions when considering the lack of compliance;
• impose a cost penalty on the defaulting party;
• impose sanctions on the non-compliant party; and
• stay the proceedings until there has been compliance with the pre-action protocols.

7.3 How is jurisdiction over the product liability suit determined?

Generally, in a product liability case, a UK court will have jurisdiction where the injury:

• occurred in the United Kingdom; or
• was caused by a product supplied by the defendant in the United Kingdom.

7.4 How is the applicable law determined?

For claims in contract, the applicable law may be determined by the terms of the contract between the parties. However, where the claim is brought under rights created by UK statute, UK law will naturally be the applicable law. The position may be more nuanced in a claim in negligence, especially where the alleged negligent act occurred outside the United Kingdom.

7.5 Under what circumstances (if any) must security for costs be provided?

Generally, a court will not award security for costs against an individual claimant based in the United Kingdom bringing a product liability case in the United Kingdom. Exceptions may apply – for example, where the claimant has taken active steps to avoid the consequences of litigation.

8 Disclosure and privilege

8.1 What rules apply to disclosure/discovery in your jurisdiction? Do any exceptions apply?

The parties to civil claims have a duty to preserve all relevant documents as soon as litigation is in reasonable contemplation. This covers anything in which information of any description is recorded, including electronic records. The obligation covers:

• documents on which a party relies;
• documents which adversely affect the party's own case;
• documents which adversely affect another party's case; and
• documents which support another party's case.

For corporations, the duty to preserve documents includes an obligation to suspend any processes that may result in a relevant document being deleted or destroyed. Corporations may also be required to notify relevant employees, former employees and agents that may have disclosable documents of the requirement to preserve such documents.

Under the pre-action protocols, parties may be required to disclose key documents relevant to the issues in dispute.

Once proceedings have commenced, the court can make directions as to the disclosure that is to be given by the parties. The scope of disclosure is closely managed by the courts, with procedures in place to try to limit the cost burden on parties to litigation.

Disclosure is generally not available in small claims track cases.

Pre-trial depositions are not a normal feature of UK product liability claims, although generally all evidence upon which a party intends to rely – including witness statements and expert reports – will be disclosed prior to trial.

8.2 What rules on privilege apply in your jurisdiction? Do any exceptions apply?

Certain documents are protected by legal professional privilege in the United Kingdom. This generally falls under two categories:

• legal advice privilege; and
• litigation privilege.

Legal advice privilege applies to confidential communications between a lawyer and client made for the purposes of giving or receiving legal advice. This covers both outside counsel and in-house counsel. However, it does not cover circumstances where the communication is not for the purpose of giving or receiving legal advice, even if the communication is to or from a lawyer. This can be especially relevant for in-house counsel, whose role may go beyond giving and receiving legal advice within their company.

Litigation privilege covers communications and documents created in contemplation of litigation and for which the dominant purposes is use in the litigation. This is broader and can extend beyond communications to or from a lawyer. Especially in the case of large corporations, it can be important to define the 'client team' within the corporation in order to ensure that relevant communications are protected.

Privilege can be waived by a party, either voluntarily or if, for example, confidentiality in the communication is lost.

8.3 What are the specific implications of the rules on discovery/disclosure and privilege in product liability suits?

Disclosure obligations can impose a significant cost and administrative burden on defendants in product liability claims in the United Kingdom, notwithstanding the efforts of the courts to reduce that burden.

There can be consequences for failing to preserve all potentially disclosable documents when litigation is contemplated, including:

• imposing costs sanctions;
• striking out a party's particulars of claim or defence (or part thereof); and
• drawing an adverse inference as to the contents of those documents.

9 Evidence

9.1 What types of evidence are permissible in your jurisdiction? How is this typically presented during the proceedings?

In product liability cases, courts will typically hear evidence both:

• as to the facts; and
• on matters of expert opinion.

Expert evidence can cover questions such as:

• whether a product is defective;
• causation; and
• the nature and extent of injuries and damages.

Parties are expected to disclose all of the evidence on which they intend to rely prior to the trial. This will normally involve an appointed time for exchange of witness statements and expert reports.

At the trial, the pre-exchanged witness statements and expert reports generally serve as the evidence in chief for both parties. Live questioning of witnesses is generally limited to cross-examination by the opposing party, and any resulting re-examination.

9.2 Is expert evidence accepted in your jurisdiction? If so, how are the experts typically appointed and what input or influence (if any) do the parties have in this regard?

Yes – see question 9.1.

The courts generally seek to exercise control over the scope of expert evidence the parties will be allowed to present. Where the court considers it appropriate, it may require the parties to jointly appoint a single expert on specific points, rather than them each being allowed to appoint their own expert.

Experts are expected to be impartial. There are strict rules requiring:

• legal counsel to make disclosures to potential experts; and
• experts to acknowledge their duty of impartiality.

9.3 What are the specific implications of the rules on evidence in product liability suits?

The requirement for evidence to be exchanged prior to trial limits the scope for new issues to arise during the litigation itself. However, the lack of opportunity for pre-trial depositions of opposing witnesses can make the outcome of a trial more unpredictable.

In theory, the controls on the use of expert evidence can help to ensure that the outcome of the trial is grounded on a solid consideration of the facts. In practice, expert evidence can often be controversial notwithstanding these controls.

10 Court proceedings

10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

The general rule is that court proceedings in the United Kingdom are public. Only in exceptional circumstances will the court order that:

• some parts of the proceedings take place behind closed doors; or
• some of the evidence be kept confidential.

10.2 How do product liability suits typically unfold in your jurisdiction?

As outlined in question 9, the parties exchange written evidence in advance of the trial and as such there is typically no 'evidence in chief'. Instead, after opening submissions, the hearing normally moves to cross-examination of witnesses – usually with witnesses for the claimant's case being heard first. Normally, limited re-examination of witnesses is possible by the party that called the witness in relation to issues arising from the cross-examination. Each party will have an opportunity to make closing submissions on both:

• the law; and
• the evidence that has been presented.

While the judge can deliver a judgment immediately, it is more normal for the judgment to be reserved to be delivered at a later date following a full trial.

10.3 What is the typical timeframe for product liability suits in your jurisdiction?

The pre-trial procedures applicable in England and Wales can often take a number of weeks or months to complete, following which proceedings can be issued. The procedural timetable and waiting time for a hearing will vary from court to court, but will usually take many months, if not longer. Complex claims and actions with multiple parties or claimants may take several years.

10.4 Are alternative dispute resolution procedures (eg, mediation, arbitration) often used in product liability cases in your jurisdiction? Are these encouraged/mandated by the courts?

The pre-action protocols that apply to product liability matters have at their heart the goal of incentivising early resolution of disputes between parties. To that end, the following forms of alternative dispute resolution (ADR) are referenced in the protocols:

• discussions and negotiations (which may or may not include making settlement offers, providing an explanation or apology or both);
• mediation (a third party facilitating a resolution);
• arbitration (a third party deciding the dispute); and
• early neutral evaluation (a third party giving an informed opinion on the dispute).

Once proceedings have comments, courts often encourage parties to explore settlement options, including with ADR tools. The courts can penalise parties that fail to do so by imposing costs orders against them.

11 Remedies

11.1 What remedies are available in product liability suits in your jurisdiction?

Generally, the remedy in product liability cases in the United Kingdom is compensatory damages.

For claims under the Consumer Protection Act 1987 (CPA), damages are recoverable only for:

• death or personal injury; or
• damage to private property that is more than £275 (excluding damage to the defective product itself).

For claims under the CPA and in negligence, damages for pure economic loss are not available.

11.2 What categories of damages are recoverable?

The heads of damage available in product liability cases are:

• 'general damages', to compensate for pain and suffering;
• damages for costs and expenses resulting from the defect in the product – for example, damage to property and medical expenses; and
• damages for economic loss such as loss of income

11.3 Are punitive damages awarded in your jurisdiction?

While in theory, non-compensatory damages such as punitive damages may be available to product liability claimants where a wilful tort has been committed by the defendant, , the courts rarely award these types of damages in practice and they are typically not seen in product liability cases.

11.4 What factors will the courts consider in deciding on the quantum of damages when liability is established?

For claims under the CPA and in negligence, damages are calculated to compensate the claimant for the damage caused by the defendant to restore the claimant, as far as is possible, to the position that he or she would have been in had the damages caused by the defect never occurred. This same principle is generally applied to product liability claims under the CPA. As above, for product liability claims based under the CPA or based on negligence, pure economic loss is generally not recoverable.

The position for calculating damages for claims founded on a breach of contract is to place the claimant in the same position as if the contract had been performed.

Generally, damages are recoverable only in circumstances where the harm suffered is not too remote.

12 Appeals

12.1 Can the court's decision in in the product liability suit be appealed? If so, on what grounds and what is the process for doing so?

In most cases, appeals in product liability cases will be available only where it is suggested that there has been an error of law. Only in exceptional cases will an appeal be available for an alleged error on the facts. Parties seeking to appeal an unfavourable judgment require permission. Tight deadlines apply to appeal applications.

Appeals against county court judgments are made either to:

• a more senior judge in the county court; or
• the High Court.

High Court judgments are appealed to the Court of Appeal. Court of Appeal judgments are appealed to the Supreme Court.

13 Costs and fees

13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

Aside from court filing fees, the parties will bear the costs of their own legal representation and expert fees. Some legal representatives will take on product liability cases for claimants on a 'no win, no fee' basis.

The usual rule in UK proceedings is that the losing party will have liability for the legal costs incurred by the winning party. However, this is always at the discretion of the court and the relevant rules do vary in UK courts.

In England and Wales, the fixed recoverable costs regime sets the amount of legal costs that the winning party can claim back from the losing party in civil litigation for claims up to a certain value. For death and personal injury claims, there is a regime of qualified one-way costs shifting that, subject to certain exceptions (eg, where the claim is found to be fundamentally dishonest), is designed to limit a claimant's liability to pay costs by limiting the extent to which cost orders can be enforced against him or her.

13.2 How are the costs and fees allocated among the parties?

See question 13.1

13.3 What happens if the claim is withdrawn before the proceedings have finished?

If a claimant withdraws a claim after the commencement of proceedings, it may be liable for costs incurred by the defendant up to the point of withdrawal of the claim.

13.4 Do the courts manage costs during the proceedings?

Yes, increasingly the UK courts are playing a role in supervising costs being incurred by parties in civil litigation. In some jurisdictions:

• parties will be required to file costs budgets for various stages of the proceedings; and
• the court may disallow some claimed costs.

13.5 How do the courts assess the costs and fees at the end of the proceedings?

The courts will carefully scrutinise:

• the reasonableness and proportionality of the costs incurred by the successful party;
• whether the party was unsuccessful in respect of any aspect of its case; and
• the conduct of the parties both during the proceedings and during the pre-action procedures.

Typically, successful parties can expect to recover only a proportion of the costs they have actually incurred.

14 Funding for product liability suits

14.1 Is legal aid available for product liability cases in your jurisdiction? If so, what requirements and restrictions apply in this regard?

Legal aid is not available for product liability cases in the United Kingdom.

14.2 Are contingency fees and similar arrangements permitted in your jurisdiction in product liability cases? If so, what requirements and restrictions apply in this regard?

Damages-based agreements and conditional fee arrangements are permitted in the United Kingdom. The terms of conditional fee arrangements are the subject of strict regulation, with the costs recoverable in personal injury cases limited to 25% of damages, excluding damages for future losses.

Full contingency fees are not allowed.

14.3 Is third-party funding permitted in your jurisdiction in product liability cases? If so, what requirements and restrictions apply in this regard?

Third-party funding is permitted in the United Kingdom, although the enforceability of third-party funding agreements is subject to the supervision of the court and this continues to be an evolving area.

15 Product safety regimes

15.1 What rules and regulations govern product safety in your jurisdiction?

A complex system of regulations governs product safety in the United Kingdom, derived mainly from EU legislation. This includes:

• the General Product Safety Regulations 2005 (GSPR), which implements the EU General Product Safety Directive and deals with the safety of consumer products generally; and
• various sector-specific regimes, including those dealing with the safety of:
• • toys;
  • electrical products;
  • cosmetics;
  • personal protective equipment;
  • motor vehicles; and
  • medicines.

15.2 Do any special regimes apply in specific sectors?

Yes – see question 15.1

15.3 Which bodies are responsible for enforcing these rules and regulations? What is their general approach in doing so?

Generally, day-to-day responsibility for enforcing product safety laws rests with the Trading Standards offices, which operate at local government level throughout the United Kingdom. While these Trading Standards offices operate and are funded independently of each other, there is some cooperation between them.

If a particular issue arises, the Trading Standards office to take responsibility for it will normally be based on the local authority region in which the producer or importer is based in the United Kingdom.

National responsibility for product safety rests with the Office for Product Safety and Standards (OPSS), which is increasingly active in dealing with product safety issues considered to be of national importance. The OPSS is also responsible for product safety policy.

15.4 What are the penalties for failing to comply with applicable product safety rules?

Criminal sanctions may be imposed for placing on the market or supplying unsafe consumer products under the GPSR. The penalties include fines and/or imprisonment. Similar provisions apply for placing on the market or supplying non-compliant products under sector-specific regulations.

Also see questions 17.1 and 17.2.

16 Product safety issues and product recalls

16.1 Under what circumstances must a product be recalled in your jurisdiction?

When a manufacturer or importer discovers that it has placed a non-compliant or unsafe product on the market, it must take appropriate steps according to the risk. This obligation arises under the General Product Safety Regulations (GPSR), as well as under sector-specific regimes. Where the risk is sufficiently serious, the steps that need to be taken will include recall from end users.

16.2 Are there obligations to report product safety issues or product recalls to the regulatory authorities? Who bears those responsibilities? What are the details of the requirements? What penalties apply for failure to comply?

Under the GPSR and most sector-regimes, manufacturers, importers and distributors have an obligation to report 'immediately' to the authorities if they learn that a product which they have placed on the market is non-compliant and presents a risk of injury.

Normally, the expectation is that the report be made to the applicable Trading Standards office, although the Office for Product Safety and Standards (OPSS) may become involved after being notified of the issue by the Trading Standards office.

Penalties for non-compliance can include fines and/or imprisonment.

An enforcing authority also has a range of powers, including to serve a recall notice in certain circumstances requiring the recipient to use reasonable endeavours to organise a recall of a product. The authority may itself take actions to recall products in exceptional cases.

16.3 What other rules and requirements apply to product recalls? Do these vary between voluntary and mandatory recalls?

There is no distinction between voluntary and mandatory recalls from a regulatory perspective in the United Kingdom. The regulatory regime does not dictate how product recalls are to be conducted. This is left to the discretion of the company conducting the recall, under the supervision of the regulatory authority.

16.4 What other types of corrective action are typically taken in your jurisdiction where a product is found to be defective?

Generally, recall is considered to be a last resort. Other corrective actions can include:

• withdrawal from the supply chain; and
• modification to product design or production processes.

In some cases, a warning to end users may suffice.

16.5 What best practices should be borne in mind in relation to product safety in your jurisdiction?

Several resources provide guidance on best practices, including:

• the Code of Practice PAS 7050:2022 for bringing safe products to market, published by the British Standards Institute with the support of the OPSS, which provides guidance for businesses on the development of a product safety management plan and building product safety principles into design and production;
• the Code of Practice PAS 7100:2022 on product recall and other corrective actions, published by the British Standards Institute with the support of the OPSS, which provides guidance on how to:
• • plan and manage a recall or other corrective action;
  • establish mechanisms to monitor the safety of products;
  • investigate potential product safety issues;
  • establish mechanisms to deal with product safety issues identified; and
  • review corrective action programmes, once undertaken, to ensure that continuing product safety responsibilities are met; and
• the EU-level guidance PROSAFE Consumer Product Safety in Europe Corrective Action Guide (November 2011, last updated April 2018), which can still be useful to assist manufacturers when undertaking corrective actions, including recalls, in accordance with the UK regulations despite Brexit.

17 Criminal liability

17.1 Can parties be found to be liable under criminal law for defective products in your jurisdiction? (a) Which parties can be held responsible? (b) Can individual officers or employees be held responsible? (c) What is the basis for liability? (d) What penalties can be imposed?

Criminal sanctions may be imposed for placing on the market or supplying unsafe consumer products under the General Product Safety Regulations 2005 (GSPR). Criminal sanctions can also be imposed for a number of other breaches, including failing to notify the authorities of a product safety issue. The penalties include fines and/or imprisonment.

Criminal liability may also be imposed under certain sector-specific product safety rules (under either the applicable legislation or the Consumer Protection Act 1987). Penalties can include fines and/or imprisonment.

The party that can be held responsible depends on the offence, but usually includes:

• manufacturers and importers; and
• for some offences, distributors.

Company directors can be held responsible and in certain cases imprisoned.

17.2 Are there any examples of the criminal law being used in your country in cases involving defective products?

In 2019, retail chain Mamas and Papas Ltd (M&P Ltd) was fined £20,000 and ordered to pay £50,000 in costs, and the director of Jeenay (UK) Ltd (a baby and child car seat distributor) was sentenced to 12 weeks in prison, for supplying almost 150,000 unsafe child car seats under the GPSR. The judge also made confiscation orders under Part 2 of the Proceeds of Crime Act 2002 to account for the profits made from the supply of the unsafe products. Mamas & Papas was subject to an order for £275,000 and Jeenay to an order for £236,850.

In 2022, the director of Buyersbargin Ltd was sentenced to three months in prison (suspended for 18 months) for failing to comply with safety regulations, with a subsequent order to account for profits made from the sale of the goods. A forfeiture order was also made against the company for failing to comply with safety regulations and the unauthorised use of a trademark.

18 Trends and predictions

18.1 Have any significant product liability and/or product safety cases been reported in your jurisdiction in the past five years? What were the details and why are they significant?

In Hastings v Finsbury Orthopaedics Ltd and anor [2022] UKSC 19, the UK Supreme Court:

• endorsed statements of principle for determining whether a product is defective for the purposes of the Consumer Protection Act 1987 (CPA) from two first-instance decisions (Wilkes v DePuy [2016] EWHC 3096 (QB) and Colin Gee & Others v DePuy International Ltd [2018] EWHC 1208 (QB)); and
• supported the view that there can be no entitlement to an absolute level of safety for certain products.

The UK Supreme Court also held that generalised expressions of professional concern, the issuing of official notices and alerts by both regulators and the manufacturer and the withdrawal of the entire product range from the market did not amount to prima facie evidence that the product was defective when considered in light of surrounding evidence.

In Wilson v Beko Plc [2019] EWHC 3362 (QB), the court examined whether it was possible for consumers to circumvent the limitations of Part I of the CPA (eg, the defences and 10-year longstop) by bringing a claim under Section 41 of the CPA for breach of statutory duty of various safety regulations made under Part II. The court held that claims under Section 41 for breach of statutory duty are not open to consumers.

18.2 How would you describe the current product liability and product safety landscapes and prevailing trends in your jurisdiction?

The question of consumer product safety has been in the public spotlight in the United Kingdom in recent years. The focus has mainly been on domestic fire risks associated with electrical products, but the implications affect all product sectors.

18.3 What new developments are anticipated in the next 12 months, including any proposed legislative reforms to the product liability and/or product safety regimes?

The UK government has been undertaking a broad-ranging review of the UK product safety and liability framework post-Brexit, specifically with a view to 'modernising' the laws to ensure that they are fit for the technologies and markets of the future. There are over 20 sets of regulations in scope of the review, including the CPA, the General Product Safety Regulations 2005 and sector-specific legislation. A consultation containing 13 wide-ranging policy proposals was published on 2 August 2023, including:

• a review of the UK product liability regime under the CPA in light of technological developments. The focus includes whether changes are required to deal with perceived risks arising from software updates, artificial intelligence and online sales;
• an examination of options for a new approach to the product safety legislative framework to:
• • at minimum, streamline the current framework to reduce duplication and inconsistences; and
  • potentially more radically, move towards a new approach centred on potential hazards, with cross-cutting risk-based safety requirements;
• the introduction of mandatory incident reporting for incidents that meet a certain threshold;
• a new defined role of an 'online marketplace' with its own set of specific duties;
• an enhanced leadership and coordination role for the Office for Product Safety and Standards (OPSS) as the national regulator, including a change in approach whereby recall notifications and reports of incidents would be sent directly to the OPSS as the single point of contact rather than to local Trading Standards offices; and
• new direct penalty powers for enforcement authorities without needing to bring a prosecution through the courts.

The government's response to the consultation setting out the policy proposals it plans to take forward and next steps is expected to be published in 2024. It remains to be seen whether the United Kingdom will follow reforms in the European Union under the EU General Product Safety Regulation or the revision of the EU Product Liability Directive.

Ahead of its fuller response, the government has announced that it plans to make some reforms in the shorter term to reduce certain regulatory costs for businesses. These include proposals to:

• indefinitely extend the recognition of goods that meet EU requirements for the GB market (England, Wales and Scotland) for 21 product regulations;
• expand easements for certain types of labelling; and
• introduce digital labelling.

However, the announcement does not rule out the possibility of the United Kingdom mandating requirements that differ from the EU requirements for certain products for the UK market.

19 Tips and traps

19.1 What are your top tips for avoiding product liability and product safety issues in your jurisdiction, and what potential sticking points would you highlight?

There has been an unprecedented amount of reform to product safety, compliance and liability laws in the United Kingdom and the European Union. Companies that supply products should ensure that they fully understand upcoming requirements and review existing products, policies and procedures to determine what changes they will need to make to comply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.