Product Liability and Warranty Litigation in England and Wales

England & Wales has three main procedures for claims for defective products (1) strict liability under the Consumer Protection Act 1987 (CPA) – this statute transposes the European Product Liability Directive, 85/374/EEC (2) in the tort of  negligence on the basis that there has been a failure to exercise reasonable care, and (3) in contract, where there is a direct agreement between the parties (e.g. retailer and consumer). 

Under the CPA ‘product’ applies to any goods, including items which are comprised in other products, whether as component parts, raw materials or otherwise. Electricity also falls within the CPA. There is no specific mention of software though claims might be made on the basis that it can be seen as a component. For negligence claims there is no specific definition of what is a product – indeed claims may also be brought for the negligent provision of a service. For contract claims typically claims will only be brought in respect of the product that is the subject of the agreement.

A claim can be brought under the CPA by any person who is injured by the defective product – that person does not have to have been the purchaser.  For a contractual claim, the claimant must be a party to the contract.  In a claim for negligence, the defendant must have had a duty of care to the claimant.

If the defective product causes an individual’s death, then their dependents may be able to bring a claim under the Fatal Accidents Act 1976.

Under the CPA, damages can be claimed for death or personal injury which were caused by a defective product.  Consumers (who purchased the product for private use, occupation or consumption) can also bring a claim for damage to other property that was caused by the defective product.  The claimant cannot seek compensation for damage to the defective product itself. If a claimant is seeking damages for property damage, then the damages claimed must be for £275 or more. 

In negligence, damages are awarded so as to put the claimant in the position they would have been in had the negligence not occurred.  Damages are only available for losses that were a direct and reasonably foreseeable consequence of the injury.  Damages are only available for financial loss that arises from physical injury or property damage.

Under contract, damages can be awarded for non-pecuniary losses, financial losses, and future financial losses.

Non-material losses can be claimed for product liability claims under the CPA, negligence and contract.  Damages are not recoverable for pure economic loss.

Under the CPA, a product is “defective” “if the safety of the product is not such as persons generally are entitled to expect… in the context of risks of damage to property, as well as in the context of risks of death or personal injury”. 

To succeed in a CPA claim, the claimant must prove that: (i) the product was defective, (ii) the claimant suffered damage and (iii) there was a causal link between the defective product and the damage suffered.

To succeed in a negligence claim, the claimant must prove on the balance of probability that: (i) the manufacturer owed them a duty of care, (ii) the manufacturer breached that duty of care, (iii) that the breach caused the damage in question, and (iv) the manufacturer could reasonably have foreseen the damage.

The CPA focuses on the product itself, whereas a negligence claim focuses on the behaviour of the manufacturer. 

To succeed in a contractual claim, the claimant must prove that there was a breach of either an expressed or implied contractual term.

Under the CPA, the claimant must prove that the product is defective and caused damage.  The producer of the product is then held strictly liable for the damage, and the claimant does not need to prove negligence.

The claimant also bears the burden of proof in negligence and contractual claims.  In very limited circumstances the burden can be shifted, for example under the doctrine of ‘res ipsa loquitor’ (“The Thing Speaks for Itself”) where the events are  so clearly caused by the defendant’s negligence that no other explanation is likely.

Under the CPA, when a claimant is seeking to prove a defect, all the circumstances will be taken into account. Specific mention is given in the CPA to: the manner in which the product has been marketed, any instructions or warnings given 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 by its producer to another.  It is specified in the CPA that a defect will not be inferred from the fact that the safety of a product which is supplied after that time is greater than the safety of the product in question.

The meaning of defect has been analysed in case law, and it was held in Gee v Depuy International Limited [2018] EWHC 1208 (QB), that “The defect is the abnormal potential for harm, i.e. whatever it is about the condition or character of the product that elevates the underlying risk beyond the level of safety that the public is entitled to expect.”

In Hastings v Finsbury Park Orthopaedics Ltd [2022] UKSC 19 (a case concerning prosthetic hips), it was held that “the nature of the product is such that there can be no entitlement to an absolute level of safety.”

In Baker v KTM Sportmotorcycle UK Ltd [2017] EWCA Civ 378, the Court of Appeal held that the claimant did not have to plead and prove a specific design or manufacturing defect for there to be a defect under the CPA.  It was not necessary to show how a defect was caused, but rather it was sufficient to just find that there was a defect.

Under the CPA, the following can be held liable for defects:

• The producer of the product;
• The entity who holds themselves out to be the producer of the product (by putting their own name or trademark on the product); and
• An importer of the product.

A supplier can also be held liable under the CPA if the injured person asks the supplier to identify one of the above parties (when it is not reasonably practicable for the injured person to identify them themselves) and the supplier fails to provide that information within a reasonable period.

In negligence claims, the manufacturer can be held liable for defects, which can include intermediate parties if the product is a component of a larger product.

In contractual claims, the defendant will need to be a party to the contract.  

Under the CPA, where two or more parties are responsible for the same damage, then their liability shall be joint and several (meaning that the claimant can require payment in full from either party, or from both parties).

In negligence, fault will be distributed among the parties, and it will be determined how much each co-defendant should contribute to the damages award.

If multiple parties are responsible under a contractual claim, then the contract will need to be considered to determine how liability should be apportioned.

In addition to factual matters, there are prescribed defences that a defendant may invoke in CPA product liability claims:

• That the defect is due to compliance with a statutory requirement or obligation.
• That the defendant did not supply the product to another.
• That the product was supplied other than in the course of business.
• That the defect did not exist in the product at the relevant time.
• That the state of scientific and technical knowledge at the relevant time was not such that the producer could have been expected to have discovered the defect while the product was under the producer’s control.
• That the product had been comprised into a subsequent product, and the defect was wholly attributable to either the design of the subsequent product or to the producer of the product in question complying with instructions given by the producer of the subsequent product.

In negligence claims, the following defences including the following can be advanced:

• Contributory negligence - where the claimant’s own negligence contributed towards their loss, for example by using the product incorrectly.
• The claimant’s voluntary assumption of risk – where the claimant knew the product risks but chose to accept them and use the product anyway; and
• Illegality – the claimant was conducting illegal activity when they suffered the loss.

Defending a contractual claim will require analysis of the express and implied contract terms.

The CPA provides that a producer cannot limit or exclude liability by using contract terms towards a person who has suffered damage caused wholly or partly by a defect in a product, or to a dependant or relative of that person.

Individuals/entities cannot seek to exclude or limit through contract terms their liability for death or personal injury resulting from negligence (including in product liability claims).

Personal injury and property damage claims under the CPA must be brought within three years of the date in which the cause of action accrued, or the date of the injury/date of knowledge of the property damage. 

It’s important to note that the Limitation Act 1980 contains a 10-year longstop provision, in which the right of action is extinguished after 10 years.   This 10-year period runs from the “relevant time” which is said in the CPA to be the time when the product was last supplied by someone who was a producer, purported producer or importer.  This period begins to run regardless of whether or not the claimant has suffered damage.  The ten-year longstop does not apply to negligence claims or contract claims.

The limitation period for simple contractual claims is six years.  The limitation period for death or personal injury cases in negligence is three years, and tort claims arising out of negligence are six years.

Where a dependant is bringing a claim under the Fatal Accidents Act 1976, the limitation period is three years from the date of death or date of knowledge of the dependent.

No, under the UK system product liability claims are rarely framed in terms of implied contractual warranties. However, under the Consumer Rights Act 2015 for business to consumer sales there are implied warranties that goods supplied will be of a satisfactory quality, fit for their purpose, and as described. These operate regardless of separate express warranties or guarantees. Note however these remedies only apply as between seller and purchaser and generally do not give rise to third party rights which (as above) are covered by the CPA and negligence regimes. 

A claimant will be entitled to damages for breach of contract if they can demonstrate that the warranty has been breached and as a result quantifiable loss was suffered.  The claimant should be put back in the position they would have been in had the contract been performed as was intended.

Damages may be awarded for:

• Non-pecuniary losses, such as pain and suffering.
• Financial losses; and
• Future financial losses.

The court cannot award punitive damages for breach of contract or under the CPA. Punitive damages are rarely awarded in England & Wales for negligence and are usually only available in torts such as deceit and defamation.

There is no specific product liability document disclosure regime, instead the standard disclosure rules under the Civil Procedure Rules (CPR) apply.  England & Wales has a broad disclosure exercise which occurs pre-trial. Parties must disclose the following documents which are or have been in their control:

• The documents on which they rely;
• The documents which adversely affect their own/another party’s case;
• The documents which support another person’s case; and
• The documents which they are required to disclose by a relevant CPR practice direction.

The issues in the case to which disclosure apply will be agreed with the court and are case dependent.

A party may also make an application for pre-action document disclosure, which will be granted if:

• The respondent and applicant are likely to be parties to subsequent proceedings.
• If it is found that had proceedings already started, then the respondent would have been required to disclosure the sought documents by way of standard disclosure; and
• Ordering disclosure before proceedings have started is desirable to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings, or to save costs.

In product liability cases, typically the following documents are disclosed:

• Internal communications regarding the product.
• Any complaints about the product.
• Compliance documents.
• Test and safety reports; and
• Documents relating to the design, manufacture and marketing of the product.

Yes, group litigation is permitted for product liability claims in England & Wales.  For example, the group litigation Gee v Depuy International Limited [2018] EWHC 1208 (QB) concerned 312 claimants who had received metal-on-metal hip prostheses manufactured by DePuy, which were said to be defective under the CPA.  It was ultimately held that the hip prostheses were not defective.

Product liability group litigations in England & Wales generally proceed on an opt-in basis.  The claims will typically either be group litigation orders where claimants apply to join a group register, or representative actions where one or more person represents those with the same interest in the claim.

The main sources of funding are:

• Conditional or contingent fee arrangements – the lawyer will only charge the claimants if they are successful in the action, but their fees will be calculated based on the conditional fee agreement or damages-based agreement.
• After the event (ATE) insurance – if the claimants are unsuccessful, this provides cover for the claimants’ liability for an adverse costs award, as well as their own disbursements.
• Third party funding – a third party will cover some or all of the legal costs and disbursements of the case, in return for a certain agreed amount from the claimants’ proceeds. The government is currently considering legislating aspects of Third-party funding. 

Successful claimants will typically recover their litigation costs from losing parties. However, the court can make issue-based cost orders too, or orders that reflect the conduct of the parties during the litigation. 

There are two main types of arrangement for funding personal injury cases that might be termed ‘contingency’ fees including those based on product liability, though typically that US term is not used so frequently in England and Wales.

First, conditional fee agreements under which the lawyer can claim costs from the losing party. A success fee is also recoverable but this is limited to 25% of the damages awarded. The claimant retains 100% of the compensation. If the claimant loses the case they do not pay any fee to their lawyer. 

Second, damages-based agreements are permitted in England & Wales. These resemble more the US contingency fee concept but differ from conditional fee agreements in that the lawyer is paid by taking a percent of the damages awarded. These agreements must be compliant with certain statutory provisions to be enforceable.  This includes capping the percentage of the total damages that the solicitor can claim, though that may include an uplift element i.e. more than would have been charged on an hourly rate.  For most civil litigation claims it will be 50% of the damages recovered, whereas in personal injury claims solicitor’s fees are capped at 25% of the total damages recovered.  Even if there is a damages-based agreement in place, costs will still be assessed in the normal way.   Note however that there are uncertainties in the UK law in this context with the Government considering regulation to clarify matters. 

It should also be noted that Qualified One-way Costs Shifting (QOCS) applies to personal injury cases and claims under the Fatal Accidents Act 1976 in England & Wales.  This means that the Court will not make an award of costs against the Claimant unless there are exceptional circumstances, such as the Claimant having disclosed no reasonable grounds for bringing the proceedings, the court finding that the proceedings were an abuse of process, or where the claim is found to be fundamentally dishonest.

Recent cases filed include those relating to talc, with other matters relating to pelvic mesh, breast implants and hormone pregnancy tests. There have been no judgments of higher courts so far in these matters meaning that there are limited conclusions that can be drawn about their implications. 

The Law Commission for England & Wales is now considering whether the current product liability regime is fit for purpose, particularly in regard to emerging technologies and AI. Stakeholders were asked to respond to the Initial Scoping Questionnaire by 31 December 2025, to allow the Law Commission to understand stakeholder’s concerns and their ideas for reform. Stakeholders have previously complained that the current regime is outdated given the technological advances over the last 40 years.  A formal public consultation on the proposals for reform is planned for the second half of 2026. 

The EU’s new Product Liability Directive (2024/2853) is clearly an agenda item for the Law Commission in its review, especially in regards to how the Directive deals with new technology and AI.  The Law Commission has emphasised that it is keen to hear stakeholder’s opinions on the new EU Directive, and whether it should be followed in the UK.