Product liability claims covered by PL protocol, claimant solicitors told

Laver: Defendants and insurers should resist attempts to bring cases out of the protocol

Claimant lawyers are wrong to argue that product liability claims fall outside the protocol for low-value public liability claims, a defendant solicitor has said.

Claire Laver said the scope of the protocol was clearly set out in its rules and included specific exceptions.

Ms Laver, a fraud partner in the Birmingham office of DAC Beachcroft, said it was “not surprising” that some firms of solicitors were seeking to avoid presenting injury claims through the portal given that they avoid fixed costs that way.

Writing on the firm’s website, she said: “A number of claimant law firms have started to argue that injury claims arising from alleged product liability fall outside the scope of the [pre-action protocol for employers’ and public liability claims], suggesting that product liability claims do not result from an accident and/or that they are not public liability claims.”

But she said the protocol defined public liability claims as “claims arising out of a breach of statutory or common law duty of care against a person other than the claimant’s employer”; while a number of specific types of claim – such as mesothelioma claims – are specifically excluded from it, product liability claims are not.

Stressing that claims which should be presented through the portal but are not are still subject to fixed costs and that the court can penalise the claimants in costs for such actions, Ms Laver said: “The low-value protocol applies to product liability claims as it does to other types of public liability claims, and attempts to avoid using it in order to escape the fixed costs rules should be resisted by defendants and their insurers.

“Should claimants attempt to circumvent the application of fixed costs through avoiding the use of the protocol, we recommend alerting them to the application of the protocol to the claim, indicating that you will not offer to pay more costs than would have been paid if the claim had been presented through the portal and stating that arguments will be raised in relation to their conduct at provisional assessment of their claim for costs.”

    Readers Comments

  • David Maloney says:

    A ridiculous argument. Product liability claims do not involve a breach of statutory duty or of a common law duty of care. A statutory cause of action is made available for Claimants in respect of the supply of defective products through the CPA 1987.

    Further, Claimants may claim for damages for breach of contract (including personal injury) under the Consumer Rights Act 2015. Does Ms Laver presume such claims arise from breaches of statutory duties or the common law duties of care?

  • Bill says:

    Claimants you’ve been told!

    Amusing headline. Nevertheless product liability does breach statutory duty under CPA (the statutory test is strict liability but there is still a duty) and yes there is a common law duty of care. Several first instance Judgments support this view.

  • abdul a hafezi says:

    I echo what Mr Maloney says and submit to Bill that whilst one would plead statutory and common law duty the strongest argument in product liability claims are breach of contract of purchase and the definition highlighted by Ms Laver does not include breach of contract and such fixed costs regime in my view should not apply.

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