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Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

Litigation procedure in England and Wales is governed by the Civil Procedure Rules. Before commencing litigation, the courts expect parties to partake in certain pre-action procedures and failure to do so can have significant consequences, particularly in terms of costs. Following appropriate engagement with the pre-action protocol, the claimant commences proceedings by filing its claim form with the applicable court and serving it (in the prescribed format) on the defendant(s).

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

In England and Wales there is a wide range of possible interim orders (eg, interim injunctions and orders for security for costs). Civil Procedure Rule Part 25 provides a non-exhaustive list of all potential interim orders that can be applied for. Each order has a distinct threshold in regards to what evidence is required and what burden is to be discharged. Accordingly, the Civil Procedure Rules should be consulted before making any such application.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

In England and Wales the standard form of disclosure, as required under the Civil Procedure Rules, is that parties disclose all documents (including electronic documents) that:

  • they intend to rely on at trial;
  • adversely affect their own case;
  • adversely affect another party’s case; and
  • support another party’s case.

This requirement is an ongoing duty which must be complied with throughout the course of litigation, meaning that any newly discovered documents subsequently unearthed after the initial exercise must be disclosed promptly. The courts also reserve the power to make orders for specific disclosure where a specific document or specific class of documents has been identified as being within a party’s possession.

While these general principles exist, the courts have broad powers to manage the conduct of litigation to ensure efficiency and proportionality, and they often impose limitations on the extent of disclosure to be given in any case.

Generally, pre-trial depositions are not used in the United Kingdom, although the parties will normally be required to exchange with the other party the witness statements and expert reports on which they intend to rely.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

In litigation in UK courts, evidence can be adduced by way of fact witnesses, experts and documentary evidence.

The Civil Procedure Rules state that any fact which needs to be proved by the evidence of a witness is generally to be proved at trial by his or her oral evidence given in public. This oral testimony must have previously been submitted to the court as a written witness statement before the trial, with any referenced exhibits accompanying that statement. It is highly unlikely that the court will allow new testimony to be orally submitted at trial that was not part of the witness’s written statement.

Generally, the courts will also exercise control over the extent to which parties can adduce evidence by experts. Permission of the court is usually needed and in some cases the court may direct that the parties jointly appoint a single expert to deal with a particular topic.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

Generally, experts are engaged by the parties to the case, with the court exercising control under its case management powers.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Expert witnesses can be relied on where doing so is reasonably required to resolve the dispute. The expert must provide his or her evidence in the form of a written report and the other side must be afforded the opportunity to submit written questions to the expert.

With a view to controlling unnecessary costs being incurred, the courts can use their discretion to disallow the appointment of an expert or to require that a single joint expert be appointed by the parties.

Any expert that intends to submit evidence in this jurisdiction must acknowledge that his or her duty is to the court and his or her analysis must be impartial and independent.

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

Class actions as such are not available in England and Wales, but certain procedural mechanisms exist that have similar effect. The courts have broad case management powers and can order that proceedings be consolidated where appropriate. This is assisted by the fact that there is no particular limit in this jurisdiction to the number of claimants and defendants that can be joined to such a consolidated claim, provided that they have “the same interest… at all stages of the proceedings and not just at the date of judgment at the end” (Emerald Supplies Ltd v British Airways plc [2010] EWCA Civ 1284).

In England and Wales there is also the possibility of proceedings being managed under a group litigation order (GLO). The GLO will establish a group register into which any claims to be consolidated will be placed. Any judgment subsequently passed on the group register is therefore binding on all of the claims which have been ordered to be a party to that group register.

Appeals

What rules and procedures govern appeals of court decisions?

Permission is required to appeal a decision of a county court or High Court judgment in England and Wales. An application will generally be heard solely on the basis of written submissions (ie, without an oral hearing), unless it is deemed that this will unfairly prejudice such an application.

An appeal must be grounded on the fact that the first-instance court’s judgment is wrong or that there was some form of serious procedural irregularity warranting an appeal. A judgment is deemed ‘wrong’ for the purposes of an appeal if it can be shown that it contains an error of law, error of fact or error of jurisdiction. Appeals grounded on the judgment’s error of fact rarely succeed, as appellate courts are reluctant to find fault with a finding of fact that was open to the first-instance court.

Statute of limitations

What is the statute of limitations for filing product liability claims?

The Limitation Act 1980 is the relevant statute for limitation periods in regards to product liability claims in England and Wales. For claims brought under contract or tort (for damages other than personal injury) there is a limitation period of six years. This period is reduced to three years for tortious claims where the damages are for personal injury, with that period running from the date when the cause of action accrues or the claimant gains knowledge of the injury.

For claims brought under the remit of the Consumer Protection Act, the action must be commenced within three years of the date when the cause of action accrues or the claimant gains certain knowledge connected with the injury. In addition to these rules, an absolute long-stop of 10 years from when the particular product was “first put into circulation” applies for Consumer Protection Act claims. This is accepted to mean the date on which the particular product was removed from the manufacturing process and entered the marketing process in the form in which it was to be consumed.

Timeframe

What is the typical duration of proceedings in product liability cases?

The duration of proceedings in England and Wales in respect of product liability claims is highly variable depending on the product in question, the nature of damages, the factual matrix involved and any subsequent appeals, as well as any permissible recesses for settlement negotiations or court timetables.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

Litigation in England and Wales generally operates under a ‘loser pays’ system. That is, the general position – including in relation to product liability litigation – is that the successful party can recover from the unsuccessful party the costs and expenses incurred in the course of the dispute. However, any such recovery is ultimately up to the court’s discretion and the court will take a holistic approach to such awards.

Any costs and expenses related to the dispute which were unnecessarily or unreasonably incurred by the successful party will unlikely be recoverable. Nevertheless, the ‘loser pays’ system is a powerful disincentive to bringing weak claims and is a factor that can significantly incentivise parties to seek an early settlement, as the risks of litigation increase over time.

What rules and restrictions (if any) govern contingency fee arrangements?

Full contingency fee arrangements are not permitted in product liability claims. Partial damage-based agreements and conditional fee arrangements are permitted and becoming increasingly popular; however, there are particular rules governing their construction which should be consulted before entering into such arrangements.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

Third-party litigation funding is permitted in England and Wales and is a rapidly developing area. Historically, concerns have been raised about aspects of certain funding arrangements, such as champerty, conflicts of interest and confidentiality/privilege. There is a range of case law on each of these points and solutions developed to enable more widespread use of third-party funding to support litigation.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

While until relatively recently many significant product liability claims were brought with the assistance of legal aid funding, the rules have changed and generally legal aid is no longer available for personal injury claims, apart from certain exceptional circumstances.

Settlement

What rules and procedures govern the settlement of product liability cases?

Parties are free to discuss potential settlement throughout the entirety of a dispute and are encouraged to do so by the Civil Procedure Rules in England and Wales. The courts will generally accept any settlement that is mutually agreed by the relevant parties. Typically, such settlement discussions are conducted on a ‘without prejudice’ basis, which means that the contents of the correspondence cannot be disclosed to the court except for the ultimate assessment of costs at the end of the matter. Settlements involving a child will generally require approval of the court in order to be binding on the child.

How common are settlements in product liability cases?

Most product liability cases in the United Kingdom are settled before trial, mainly because settlement can be conducted confidentially and it removes the possibility of the defect or liability becoming public knowledge in open court. The ‘loser pays’ costs rule is also a strong incentive for parties to settle their claim at an early opportunity.

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

In respect of litigation in England and Wales generally, parties are encouraged in the pre-action phase of any potential litigation to attempt to reach a settlement – and part of this process is entertaining the prospect of ADR mechanisms, such as mediation or neutral evaluation. However, they are generally not compulsory.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

ADR is expected, at a minimum, to be considered under the Civil Procedure Rules pre-action protocol. There is no comprehensive data that quantifies the successful use of ADR to resolve product liability claims pre-litigation. In our experience the use of ADR options is relatively common in high-value and high-stakes cases, but less common in smaller cases, although some courts offer a mediation service that can be used to seek to resolve small claims.

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