A landmark High Court ruling has clarified the territorial application of the Consumer Protection Act 1987. The court also considered the application of the EU Rome II Regulation and the Private International Law (Miscellaneous Provisions) Act 1995 in product liability cases. The decision confirms that UK manufacturers are not liable under the Consumer Protection Act for injuries sustained outside the United Kingdom, although a query still exists as to whether it extends to injuries sustained within the European Economic Area (EEA).
Allen v DePuy International Ltd(1) concerned injuries allegedly caused by defective hip implants manufactured by the defendants in England. The claimants had all received their implants outside the EEA. Each argued that English law should apply to their claim – on the basis that the prostheses were all designed and manufactured in England – and that the Consumer Protection Act applied by virtue of Section 12 of the Private International Law Act.
The court was asked to rule, as a preliminary issue, as to whether the choice of law should be governed by the Rome II Regulation, which would apply if the events giving rise to the damage occurred after January 11 2009, or by the Private International Law Act. The judge decided that the date of the event giving rise to the damage should be the date of manufacture or distribution (failing that, the date that the product was implanted could be considered). The products in question were all first supplied to the consumer before January 11 2009, so the claim fell within the Private International Law Act. The usual rule in cases falling under the Private International Law Act is that the law of the place where the injury is sustained should apply. The judge found that (and in the absence of compelling reasons otherwise) as none of the injuries were sustained in England, there was no case to answer before the English courts.
Further, the judge held that the Consumer Protection Act is not intended to offer redress for injuries sustained anywhere in the world. Although the implants were manufactured in England, the claimants were all non-EEA consumers who had suffered injury outside the EEA from products supplied to them outside the EEA. They were therefore outside the territorial scope of the Consumer Protection Act. As a result, even if the applicable law had been English, the claimants could not rely on the Consumer Protection Act in a suit in a foreign court. The question remains as to whether the Consumer Protection Act is limited to damage within the United Kingdom or also applies where injuries are sustained within the EEA – a matter on which the judge was not required to rule. Similarly, the judgment provides no clarification on the meaning of 'putting into circulation' for the purposes of the Consumer Protection Act.
For further information on this topic please contact Andrew Austin at Freshfields Bruckhaus Deringer LLP by telephone (+44 20 7936 4000), fax (+44 20 7832 7001) or email ([email protected]). The Freshfields Bruckhaus Deringer website can be accessed at www.freshfields.com.
Endnotes
(1) [2014] EWHC 753.
