Product Liability

by Miller, C. J.; Goldberg, R. S.

• ISBN13: 9780198256786
• ISBN10: 0198256787
• Edition: 2nd
• Format: Hardcover
• Copyright: 2004-09-30
• Publisher: Oxford University Press

Summary

This major text provides comprehensive coverage of the law of negligence and strict liability provisions as it has developed in the UK, and also contains detailed discussion of case law from other jurisdictions including the USA, Australia, New Zealand, Canada, France and Germany. Complete with detailed, authoritative discussions of issues arising in transnational litigation, this book provides all the necessary information for lawyers to achieve fast, effective solutions for their clients while also highlighting preventative measures.

Author Biography

Professor Christopher John Miller is Emeritus Professor of English Law at the University of Birmingham and has been an adviser to the National Consumer Council, the Consumers Association, and the OECD. He is an editor of and contributor to Benjamin's Sale of Goods, and a regular contributor to the All England Law Reports Annual Review. He is also author of the Product Liability and Safety Encyclopaedia. Dr. Richard S. Goldberg is a Senior Lecturer in Law at the University of Birmingham, having previously taught at the LSE, Kings' College London, and Queen Mary and Westfield College London. He has worked as a seconded legal assistant with McKenna & Co on the benzodiazepine lititgation and other medicinal product liability cases. He is the author of Causation and the Risk in the Law of Torts which was nominated for the SPTL Book Prize in 1999.

Table of Contents

Table of Cases	xxxi
Table of Statutes, Regulations and Rules	lxxxi
Table of Treaties and Conventions	xcix
Abbreviations	ci
Introduction and Modern Historical Outline
Introduction	1	(2)
Contract and Tort in English Product Liability Law	3	(5)
Winterbottom v Wright and Exceptions to the Early Rule of Non-liability	8	(10)
Appliances on premises	13	(2)
Inherently dangerous chattels	15	(3)
The Decision in Donoghue v Stevenson	18	(6)
The Movement Towards Strict Liability	24	(5)
Developments in the United States	29
Introduction	29	(1)
Developments before Macpherson v Buick Motor Co	30	(6)
Express and implied warranties	36	(4)
Strict liability and Restatement, Second, Torts § 402A	40	(3)
Restatement, Third, Torts: Products Liability	43
I LIABILITY IN CONTRACT AND FOR MISREPRESENTATIONS
Privity of Contract
Introduction	1	(2)
Implications of Privity of Contract	3
Dispensing with vertical privity requirements	7	(1)
Business to business contracts	8	(1)
Business to consumer contracts	9	(5)
Dispensing with horizontal privity requirements	14	(8)
The Contracts (Rights of Third Parties) Act 1999	22
Express Warranties and Misrepresentations
Introduction	1	(1)
Liability as Between Sellers and Purchasers	2	(36)
Puffs and statements of opinion	2	(3)
Warranties and mere representations	5	(1)
Representation or term: promissory intent, reliance, or basis of bargain	6	(8)
Classification of terms: conditions, warranties, and innominate terms	14	(4)
Liability for misrepresentations	18	(1)
The Hedley Byrne case	19	(2)
The Misrepresentation Act 1967	21	(4)
Rescission and damages	25	(1)
Rescission	25	(5)
Damages	30	(8)
Liability as Between Manufacturers and Remote Consumers	38
Express warranties in American law	38	(8)
English and Commonwealth developments	46	(1)
Contracts of sale	47	(1)
Collateral contracts	48	(3)
Commonwealth examples	51	(2)
Manufacturers' guarantees	53	(1)
Claims on guarantees	54	(5)
Excluding liability	59	(2)
Extended warranties	61
Implied Terms as to Correspondence with Description, Satisfactory Quality, and Fitness for Purpose
Introduction	1	(1)
Contracts of Sale Distinguished from Other Transactions	2	(15)
Near sales transactions and promotional gifts	3	(3)
Contracts of exchange or barter	6	(1)
Contracts for work and materials	7	(4)
Contracts for services	11	(3)
Contracts of hire-purchase and of hire	14	(3)
The Implied Condition of Correspondence with Description	17	(22)
Representations, warranties, and descriptions	19	(4)
When is a sale by description?	23	(6)
Description, quality, fitness for purpose, and the effect of non-compliance	29	(8)
Adopting a manufacturer's descriptions	37	(1)
Private sales	38	(1)
The Implied Condition of Satisfactory Quality	39	(46)
Introduction	39	(4)
Sale in the course of a business	43	(4)
Goods supplied under the contract	47	(1)
Satisfactory quality	48	(1)
The standard demanded	48	(8)
Aspects of the quality of goods	56	(19)
Modifications for consumer sales	75	(4)
Second-hand goods	79	(3)
Notification of defects and inspection	82	(3)
The Implied Condition of Reasonable Fitness for Purpose	85
Introduction	85	(2)
Making known a particular purpose	87	(5)
Reasonable reliance on skill or judgment	92	(4)
Partial reliance	96	(2)
Purchases under patent or trade names	98	(2)
Notification of defects and inspection	100	(1)
The standard demanded	101	(4)
Consumer sales	105	(2)
The strict nature of contractual liability	107
Remedies for Breach of the Implied Terms
Introduction	1	(1)
Commercial Sales	2	(17)
Rejection, rescission, and repudiation	2	(2)
Limits to the right to reject	4	(1)
Rejection	5	(1)
Slight breaches	6	(1)
Examination and acceptance	7	(12)
Consumer Sales	19	(10)
Introduction	19	(1)
Additional rights of buyer	20	(5)
Relationship to existing remedies	25	(4)
Other Transactions	29	(4)
Damages	33
Exemption Clauses and Unfair Contract Terms
Introduction	1	(6)
Control Through the Requirements of Incorporation and the Common Law Rules of Construction	7	(16)
Incorporation	7	(3)
The contra proferentem rule	10	(5)
Fundamental terms and fundamental breach	15	(1)
Fundamental terms	16	(1)
Fundamental breach	17	(1)
The legal consequences of breach	18	(5)
Statutory Control of Exemption Clauses and Unfair Contract Terms	23
Introduction	23	(1)
The Unfair Contract Terms Act 1977	24	(1)
The scope of control	24	(1)
Varieties of exemption clause	25	(5)
Dealing as consumer	30	(11)
Dealing otherwise than as consumer	41	(12)
Unfair Terms in Consumer Contracts Regulations 1999	53	(1)
The scope and effect of the Regulations	53	(2)
Unfair terms in consumer sales	55	(2)
The Misrepresentation Act 1967	57
II STRICT LIABILITY IN TORT
Introduction to Strict Product Liability
Primary Cause of Action	1	(5)
Justification for Reform	6	(3)
Thalidomide and the inadequacies of the tort of negligence	6	(1)
Fault liability versus strict liability	7	(2)
Reform Proposals	9	(9)
The proposals of the Law Commissions and Pearson Commission	9	(2)
National European developments	11	(3)
Council of Europe (Strasbourg) Convention on Products Liability	14	(2)
Evolution of European Community Directive on Product Liability	16	(2)
Product Liability Directive	18	(19)
General	18	(1)
Basis for legislation	19	(2)
Implementation of Product Liability Directive	21	(1)
Member States' implementing laws	21	(1)
Optional provisions	22	(2)
Pre-existing laws of Member States	24	(1)
A maximum harmonization Directive	25	(8)
Interpretation of national implementing legislation	33	(4)
European Community Developments since the Product Liability Directive	37	(15)
Initial reviews of the Directive	37	(3)
Green Paper	40	(2)
Second Commission Report	42	(5)
Report on Product Liability in the European Union for the European Commission (February 2003)	47	(5)
Implementation of the Product Liability Directive in the United Kingdom: the Consumer Protection Act 1987	52
Persons Subject to Liability
Primary and Secondary Producers Distinguished	1	(4)
Primary Producers: Producer, Own-Brander, Importer	5	(27)
Producer	5	(1)
Definition	5	(1)
Manufacturers	6	(5)
Producers of non-manufactured products	11	(5)
Products marketed under trade or brand names	16	(1)
Definition and rationale	16	(2)
Conditions for liability	18	(8)
Importers from outside the Member States	26	(1)
Definition and rationale	26	(1)
Scope: imported into the Community	27	(2)
Evaluation of policy	29	(3)
Secondary Producers: Suppliers	32	(20)
General: subsidiary liability	32	(2)
The broad definition of the term `supplier'	34	(5)
The requirement of a request	39	(4)
Conditions concerning request	43	(1)
General	43	(2)
Reasonable time period	45	(1)
Compliance with request	46	(4)
Sellers of finished products	50	(2)
Supplying and Putting into Circulation	52	(17)
Context in which issue arises	52	(2)
The language of the Directive: putting into circulation	54	(6)
Supply under the Consumer Protection Act 1987	60	(4)
Special forms of supply	64	(1)
Gas and water	64	(1)
Finance agreements, including hire-purchase	65	(1)
Ships, aircraft, and motor vehicles	66	(1)
Continuation or renewal of hire or loan, etc	67	(1)
Supply of goods incorporated into a building or structure	68	(1)
The Crown	69	(2)
Liability in general	69	(1)
Liability under Consumer Protection Act 1987	70	(1)
Joint and Several Liability	71	(17)
Introduction and rationale	71	(4)
Contribution and recourse	75	(5)
Assessment of contribution: apportionment	80	(7)
Indemnity	87	(1)
Persons Falling Outside the Scope of the 1987 Act	88
Introduction	88	(1)
Corporate personality	89	(1)
The United Kingdom	89	(2)
The position in the United States	91	(9)
A brief comparison	100
Products within the Strict Liability Regime
Definitions of Product	1	(4)
Products to which Strict Liability Applies	5
Primary agricultural and natural products	5	(1)
Legislative history	5	(3)
The views of law reform bodies and justifications for exclusion of primary agricultural produce	8	(4)
Scope of exclusion prior to repeal	12	(7)
Justifications for removing the exclusion of primary agricultural produce	19	(2)
Immovables and building materials	21	(1)
Nature of exclusion	21	(3)
Building materials	24	(2)
Should the Directive be extended to cover real property?	26	(7)
Components and raw materials	33	(1)
Arguments for and against justifying an exemption for component parts and raw materials	33	(3)
Position under the Consumer Protection Act 1987	36	(1)
Liability of component suppliers in the United States	37	(4)
Ships and aircraft	41	(1)
Ships	41	(1)
Aircraft	42	(2)
Medicinal products	44	(1)
Historical background: a special case?	44	(3)
European pharmaceutical product liability regimes	47	(7)
Position under the Product Liability Directive and the Consumer Protection Act 1987	54	(4)
Vaccine damage	58	(3)
The position in the United States	61	(7)
Human blood, plasma, human tissue and organs	68	(10)
Intellectual Products	78	(1)
Introduction	78	(2)
Are intellectual products within the ambit of strict product liability?	80	(4)
Advice	84	(3)
Publications	87	(10)
Computer software	97	(7)
Electricity	104	(3)
Nuclear installations	107	(2)
Craft products	109	(1)
Second-hand products and waste	110	(1)
Liability of producers	110	(6)
Liability of mere suppliers	116	(6)
Cigarettes and tobacco products	122
The Requirement of a Defect: Introductory Issues
Introduction	1	(12)
Preliminary issues	1	(5)
Proof that the product was defective	6	(7)
The Definition of a Defect	13	(7)
General observations	13	(5)
Alleged vagueness of defectiveness standard	18	(1)
Overtones of a negligence standard	19	(1)
Consumer Expectations Versus Risk-Utility	20	(24)
Introduction	20	(1)
Consumer expectations	21	(1)
General observations	21	(3)
The experience of the United States	24	(8)
Risk-utility	32	(1)
General observations	32	(2)
The experience of the United States	34	(6)
Problems with risk-utility approach	40	(4)
Defectiveness under the Consumer Protection Act 1987	44	(7)
Introduction	44	(1)
Expectations of `persons generally'	45	(5)
Risks affecting safety	50	(1)
Circumstances Taken into Account in Assessing Defectivenes	51	(39)
Introduction	51	(1)
Express factors in determining defectiveness	52	(1)
Marketing, presentation, instructions, and warnings	53	(7)
Reasonably expected use	60	(2)
Time of supply of product by producer to another	62	(6)
Relevant but non-specified circumstances	68	(1)
Obvious or hidden dangers	69	(6)
Regulations and equivalent safety standards	75	(7)
Cost and practicability of a safer design and risk-utility analysis	82	(1)
Apparently irrelevant circumstances	83	(7)
Application of the Defectiveness Standard to the Alternative and Traditional Defect Taxonomies	90
General observations	90	(1)
An alternative to the classification of defects: Burton J's standard/non-standard product dichotomy in A v National Blood Authority	91
Manufacturing or Production Defects and Design Defects
Manufacturing or Production Defects	1	(9)
Product Liability Directive and Consumer Protection Act 1987	1	(6)
The experience of the United States	7	(3)
Design Defects	10
General observations	10	(5)
Problems in applying a consumer expectation test	15	(4)
Design defects and risk-utility	19	(1)
The dominance of the risk-utility test in design defect cases	19	(1)
Problems with risk-utility and design defects in practice	20	(3)
The cost and practicability of a safer design	23	(1)
Consumer Protection Act 1987	23	(3)
The experience of the United States	26	(6)
Lessons from the American experience: the combining of consumer expectation and risk-utility tests	32	(1)
General observations	32	(2)
Defining one test in terms of the other	34	(2)
Two independent `prongs' of liability	36	(3)
Choice of test linked to complexity of design	39	(2)
Support for a continued consumer expectation--risk-utility approach for complex cases under Product Liability Directive and Consumer Protection Act 1987	41	(1)
The Restatement, Third, Torts: Products Liability and Design Defects	42	(5)
Inherently dangerous products	47	(1)
Product Liability Directive and Consumer Protection Act 1987	47	(2)
The Restatements: Developments in the United States	49	(4)
Foreseeable acts of third parties or victims	53	(1)
General observations	53	(2)
Tampering	55	(1)
Modification, installation, or maintenance	56	(2)
Design facilitating misuse	58	(1)
Foreseeable product misuse by victim	59	(3)
The position of third parties or bystanders	62
Defects in Warnings and Instructions for Use
Introduction	1	(13)
Importance of warnings and instructions	1	(3)
Relation between designs and warnings	4	(2)
Functions of warnings	6	(1)
Criticism of standards governing failure to warn	7	(1)
Failure to warn in negligence and strict liability	8	(4)
Unknown and unknowable risks	12	(1)
Obvious risks	13	(1)
Strict Liability	14	(18)
Product Liability Directive and Consumer Protection Act 1987	14	(7)
Developments in the United States	21	(1)
Circumstances in which duty to warn arises	21	(2)
Consumer expectations	23	(5)
Risk-utility: manufacturer's warning obligations limited by the present state of human knowledge	28	(4)
Persons to Be Warned	32	(33)
Introduction	32	(1)
Foreseeability of user doctrine	33	(4)
Sophisticated or professional user doctrine	37	(1)
Product Liability Directive and Consumer Protection Act 1987	37	(1)
Developments in the United States	38	(5)
Bystander doctrine	43	(2)
Learned intermediary doctrine	45	(1)
Product Liability Directive and Consumer Protection Act 1987	45	(6)
Developments in the United States	51	(7)
Allergic or idiosyncratic users	58	(1)
General observations	58	(3)
Idiosyncratic and allergic users distinguished	61	(1)
`Substantial' or `appreciable' number test	62	(3)
Adequacy of Warnings	65	(12)
Product Liability Directive and Consumer Protection Act 1987	65	(1)
General factors	65	(1)
Specific factors	66	(4)
United States case law	70	(1)
General factors	70	(3)
Watered down or ambiguous language	73	(1)
Undermining warning's effectiveness	74	(1)
Bilingual warnings or universal symbols	75	(2)
The Causation Requirement	77	(12)
Product Liability Directive and Consumer Protection Act 1987	77	(1)
General observations	77	(1)
Consumers' inattention to warnings	78	(2)
A subjective test?	80	(1)
Developments in the United States	81	(1)
Requirements for cause of action	81	(3)
Two-pronged causation test	84	(1)
Presumptions	85	(4)
Strict Liability in Tort: No Post-Marketing Obligation to Warn of Subsequent Dangers	89
Statutory Defences to Liability
Introduction	1	(2)
Compliance with Mandatory Statutory or Community Requirements	3	(3)
No Supply of the Product	6	(4)
Introduction	6	(2)
Some specific examples	8	(2)
Supply Otherwise than in the Course of a Business, etc	10	(6)
Introduction	10	(2)
First limb: otherwise than in the course of a business of that person's	12	(1)
Second limb: things done otherwise than with a view to profit	13	(3)
Product not Defective at the Time of Supply	16	(9)
Introduction	16	(1)
Persons potentially liable under section 2(2) of the Act	17	(4)
Mere suppliers potentially liable under section 2(3) of the Act	21	(4)
The Development Risk Defence	25	(81)
Nature and scope of the defence	25	(1)
Introduction	25	(1)
Background and definition	26	(5)
Some criticisms of the statutory wording	31	(5)
Development risk and the state of the art defence	36	(3)
Optional nature of the defence	39	(1)
Member States which have derogated from the defence	40	(2)
The relevant time at which to apply the test	42	(2)
Infringement Proceedings in the European Court of Justice: Commission v United Kingdom	44	(1)
Initial stages	44	(3)
Advocate General's opinion	47	(5)
The judgment of the European Court of Justice	52	(7)
European Commission reform proposals	59	(1)
Green Paper	59	(1)
Second Report	60	(1)
Report on Product Liability in the European Union for the European Commission (February 2003)	61	(1)
Defects which might be expected to be discovered	62	(1)
General observations	62	(2)
Discoverability and economic feasibility	64	(1)
Discoverability of unknown and unknowable defects	65	(12)
Defects hidden from view by limited scientific and technical knowledge	77	(1)
Defects hidden from view by limited general knowledge	78	(1)
The meaning and implications of scientific and technical knowledge	79	(1)
General observations	79	(3)
The constituents of knowledge	82	(3)
Knowledge in the context of an adverse drug reaction	85	(1)
Knowledge and accessibility	86	(2)
The example of thalidomide	88	(3)
Defects which are known of, but undetectable in any particular case	91	(1)
Introduction	91	(2)
Defects which are undetectable	93	(5)
Comparative jurisprudence	98	(6)
Conclusions	104	(2)
Component Producers	106
Introduction	106	(2)
First limb: defect in subsequent product	108	(2)
Second limb: wholly attributable to the design of the subsequent product, etc	110
III LIABILITY IN TORT FOR NEGLIGENCE
The Producer's Liability in Negligence
Introduction	1	(1)
The Donoghue v Stevenson Principle	2	(7)
Products	3	(2)
Claimants	5	(2)
Producers and other defendants	7	(2)
Product Liability and the General Law of Negligence	9	(7)
Types of Defects and the Standard to be Applied	16	(11)
Introduction	16	(1)
The standard to be applied	17	(10)
Manufacturing or Production Defects	27	(21)
Introduction	27	(1)
Foreign objects and substances	28	(1)
Impurities and natural substances	29	(3)
Weak or defective materials	32	(1)
Assembly and construction	33	(1)
Containers and packaging	34	(2)
Manufacturers of components and materials	36	(2)
Liability of manufacturers of end products for components, containers, and processing	38	(1)
The duty to exercise reasonable care	38	(3)
Non-delegable duties	41	(7)
Design Defects	48	(30)
Introduction	48	(2)
Materials and ingredients	50	(1)
Materials of insufficient strength or durability	50	(3)
Inflammable, explosive, and corrosive materials	53	(2)
Materials carrying long-term health hazards	55	(1)
Medicinal products	56	(1)
Animal feeding compounds and medicines	57	(1)
Fertilizers, herbicides, insecticides, etc	58	(1)
Design specifications and concealed dangers	59	(4)
Absence of safety features and devices	63	(1)
Motor vehicle design	64	(9)
Other areas	73	(4)
Components	77	(1)
Defects in Warnings and Instructions for Use	78	(46)
Introduction	78	(1)
Warnings and instructions when the product is marketed	79	(1)
The need for adequate warnings and instructions	79	(16)
Some factors affecting the need for and adequacy of warnings	95	(21)
Warnings of subsequently discovered dangers	116	(8)
Proof of Negligence	124
Introduction	124	(1)
Two possible exceptions	125	(1)
Liability under Rylands v Fletcher	126	(1)
Inherently dangerous chattels	127	(3)
The duty to test, inspect, and discover	130	(9)
The safety record of the product	139	(1)
Absence of previous accidents	139	(2)
Previous accidents	141	(1)
Subsequent accidents and remedial measures	142	(3)
Industrial, regulatory, and statutory standards	145	(1)
Introduction	145	(1)
Industrial standards	146	(1)
Regulatory and statutory standards	147
The Liability in Negligence of Persons Other than Producers
Introduction	1	(1)
Basic Duties Common to all who Supply or Control the Use of a Product	2	(6)
The duty to refrain from deceit	2	(2)
The duty to disclose known dangers	4	(2)
The duty not to supply a dangerous article into irresponsible hands	6	(2)
The Liability of Particular Persons or Bodies	8
Retailers	8	(6)
Product hire or lease	14	(2)
Donors and gratuitous bailors	16	(2)
Intermediate distributors and importers	18	(5)
Repairers, servicers, reconditioners, assemblers, installers, and contractors	23	(2)
Product designers	25	(3)
Inspectors, engineers, certifiers, testing agencies, endorsers, and persons occupying a similar position	28	(6)
Building contractors and builder-vendors	34
IV LIABILITY IN TORT: ISSUES COMMON TO STRICT LIABILITY AND LIABILITY IN NEGLIGENCE
The Types of Damage or Loss Compensated
Introduction	1	(4)
Death and Personal Injury	5	(27)
Introduction	5	(6)
Psychiatric injury and illness	11	(8)
Pre-natal and pre-conception injuries	19	(8)
Allergies and peculiar susceptibilities	27	(5)
Damage to or Loss of Property	32
Introduction	32	(1)
Damage to property	33	(5)
Loss of property	38	(4)
The type of property lost or damaged	42	(5)
The £275 or 500 ECU limit	47	(3)
The lack of a financial or global ceiling	50	(2)
Damage to the defective product, averting dangers, the costs of repair, sub-standard goods, and related matters	52	(1)
Introduction	52	(3)
The position in the United Kingdom	55	(21)
Contrasting Canadian decisions	76	(6)
Developments in the United States	82	(8)
Summary	90
Causation, Remoteness of Damage and Defences
Causation and Remoteness of Damage	1	(97)
Introduction	1	(3)
Causation in fact	4	(1)
Introduction	4	(1)
Proving a causal link between product and damage	5	(9)
`But-for' test	14	(6)
Reducing difficulties of proving causation: material contribution and material increase in risk, alternative causation and multiple or indeterminate defendants	20	(17)
Loss of a chance	37	(5)
Defective condition of product must be traced to manufacturer	42	(3)
Proof that the defendant is the manufacturer	45	(12)
Remoteness of damage	57	(1)
Preliminary points	57	(1)
General principles	58	(5)
`Scope of the duty' of care, `scope of liability' and purpose of the relevant cause of action	63	(1)
Product liability cases and remoteness	64	(3)
Supervening causes: intervening acts of third parties	67	(5)
Intermediate examination	72	(12)
Failure to warn and causation	84	(3)
Strict liability and causation under the Consumer Protection Act 1987	87	(1)
General principles	87	(1)
Onus of proof	88	(6)
Intermediate examination	94	(1)
Remoteness	95	(1)
Conclusion	96	(2)
Contributory Negligence and Abnormal Use	98	(11)
Introduction	98	(3)
Claims in negligence	101	(3)
Contributory fault and strict liability	104	(5)
Voluntary Assumption of Risk: Knowledge and Exemption Clauses	109	(8)
Voluntary assumption of risk	109	(1)
Claims in negligence	109	(1)
Claims under the 1987 Act	110	(2)
Knowledge of the claimant	112	(1)
Claims in negligence	112	(2)
Claims under the 1987 Act	114	(1)
Exemption and limitation clauses	115	(2)
Limitation Periods	117
Introduction	117	(1)
Claims under the Consumer Protection Act 1987	118	(1)
General observations	118	(1)
Personal injuries	119	(6)
Death: claims under the Fatal Accidents Act 1976	125	(1)
Loss of or damage to property	126	(3)
The ten-year long-stop	129	(8)
Claims in negligence	137	(1)
Personal injuries and death	137	(1)
Damage to property and economic loss	138	(7)
Law Commission recommendations	145
V CONFLICT OF LAWS
Product Liability and the Conflict of Laws
Introduction	1	(1)
The Jurisdiction of English Courts: General Comment	2	(1)
The European Regime of Jurisdiction	3	(79)
Introduction	3	(2)
The Brussels I Regulation and the Brussels and Lugano Conventions: which scheme applies?	5	(2)
Intra-United Kingdom jurisdiction disputes	7	(1)
Scope of discussion: the Brussels I Regulation	8	(1)
Interpretative methodology	9	(1)
A hierarchical system	10	(1)
The Regulation applied	11	(1)
Scope	11	(2)
Other Conventions	13	(1)
Exclusive jurisdiction	14	(1)
Submission	15	(1)
Insurance contracts	16	(1)
Consumer contracts	17	(8)
Employment contracts	25	(1)
Jurisdiction clauses	26	(3)
The defendant's domicile	29	(6)
Derogation to the common law	35	(1)
Special jurisdiction	36	(36)
Identical or related proceedings elsewhere; the court first seised rule	72	(8)
A residual discretion to stay proceedings?	80	(2)
Jurisdiction at Common Law	82	(44)
General comment	82	(1)
Service as of right	83	(1)
General comment	83	(1)
Territorial connection	84	(4)
Submission	88	(1)
Staying proceedings where the court has jurisdiction as of right	89	(1)
The Spilada test	89	(1)
The first limb of the test	90	(6)
The place of the tort and the natural forum	96	(5)
The second limb of the Spilada test	101	(2)
Staying proceedings where the parties have contractually agreed to litigate in a non-Member State	103	(1)
Jurisdiction by service of the claim form out of the jurisdiction with the permission of the court: CPR, r6.20	104	(1)
General comment	104	(1)
CPR, r 6.20(3): co-defendants	105	(2)
CPR, r 6.20(5)--(7): contractual claims	107	(1)
CPR, r6.20(8): tortious claims	108	(14)
The exercise of the court's discretion to permit service out of the jurisdiction	122	(4)
Reverse Forum Shopping: Anti-Suit Injunctions and Negative Declaratory Relief	126	(13)
Introduction	126	(1)
Anti-suit injunctions	127	(1)
Nature	127	(1)
Where proceedings may be brought in a non-Member State or in England	128	(1)
Proceedings are brought in a non-Member State and the English courts are not available	129	(3)
The overseas proceedings are in breach of an English jurisdiction clause	132	(3)
Restraint of proceedings in a European Member State	135	(1)
The declaration of non-liability	136	(1)
Nature	136	(1)
Jurisdiction	137	(1)
The grant of relief	138	(1)
Jurisdiction to Grant Interim Relief in Support of Overseas Proceedings	139	(5)
General remark	139	(1)
Substantive proceedings in a European Member State	140	(1)
Substantive proceedings in a non-Member State	141	(1)
Discretion to refuse interim relief	142	(1)
Enforcement of interim awards	143	(1)
Recognition and Enforcement of Foreign Judgments	144	(11)
The schemes of recognition and enforcement of foreign judgments	144	(1)
Recognition or enforcement?	145	(1)
Recognition and enforcement of foreign judgments under the European regime	146	(3)
Recognition and enforcement of foreign judgments under the statutory schemes and at common law	149	(2)
Intra-United Kingdom judgments	151	(1)
The effect of foreign judgments in an English court	152	(1)
Cause of action estoppel	153	(1)
Issue estoppel	154	(1)
Choice of Law---General Remarks	155	(2)
Substance and procedure: proof of foreign law	155	(1)
Classification	156	(1)
Choice of Law in Tort	157	(33)
Introduction	157	(1)
The common law	158	(1)
General rule	158	(1)
Exceptions	159	(1)
Common law rules applicable to defamation claims and torts pre-dating the Act	160	(1)
Statutory reform: The Private International Law (Miscellaneous Provisions) Act 1995, Part III	161	(1)
Introduction	161	(1)
The scope of the Act	162	(7)
Torts occurring in England	169	(1)
The governing law: general rule	170	(2)
Application of the general rule to product liability	172	(6)
Displacement of the general rule	178	(3)
Application of the exception to product liability	181	(2)
Exclusion of the doctrine of renvoi	183	(1)
Limits on the role of the governing law	184	(4)
Contractual defences to tort claims: manufacturer purports to exclude liability to purchaser in tort	188	(2)
Choice of Law in Contract	190	(33)
The legislation	191	(2)
Scope of the Convention; specific exclusions	193	(1)
The applicable law	194	(1)
Express or implied choice	194	(1)
Limit on freedom of choice	195	(1)
Changing the governing law	196	(1)
The applicable law in the absence of choice: characteristic performance	197	(2)
Exclusion of renvoi	199	(1)
Essential validity	200	(1)
Scope of the applicable law	201	(1)
`Interpretation'	202	(1)
`Performance'	203	(1)
`Within the limits of the powers conferred on the court by its procedural law, the consequences of breach, including the assessment of damages in so far as it is governed by rules of law'	204	(2)
`The various ways of extinguishing obligations and prescription and limitation of actions'	206	(1)
Formal validity: commercial contracts	207	(1)
Consumer contracts	208	(1)
`Consumer contracts': the pre-conditions	209	(3)
Choice of law upheld but subject to the mandatory rules of the consumer's habitual residence	212	(2)
No choice of law	214	(1)
Formal validity of consumer contracts	215	(1)
Mandatory rules and public policy	216	(1)
Introduction	216	(1)
Mandatory rules	217	(5)
Public policy	222	(1)
The Application of the Unfair Contract Terms Act 1977 in International Product Liability Cases	223	(8)
Relevance and importance to product liability	223	(2)
Exclusion of certain international sale of goods contracts: section 26	225	(2)
The ambit of UCTA: section 27	227	(1)
Contracts governed by the law of the United Kingdom only by virtue of a choice of law by the parties	227	(1)
Application of UCTA notwithstanding a choice of the law of a foreign state	228	(3)
The Ambit of the Product Liability Directive and Consumer Protection Act 1987 in Cross-Border Matters	231
The territorial scope of the Product Liability Directive	231	(1)
The Product Liability Directive	231	(1)
The Consumer Protection Act 1987	232	(1)
Are the rules contained in the Product Liability Directive and Consumer Protection Act 1987 domestic mandatory rules, international mandatory rules or neither?	233	(1)
Construction	233	(3)
Application	236
VI PRODUCT SAFETY AND THE CRIMINAL LAW
Provisions Covering General Product Safety
Introduction	1	(1)
Health and Safety at Work etc Act 1974	2	(1)
Consumer Protection Act 1987, Part II	3	(12)
Introduction	3	(1)
Safety regulations	4	(3)
Prohibition notices and notices to warn	7	(3)
Suspension notices and forfeiture orders	10	(2)
Defences, common-form provisions, and enforcement	12	(3)
General Product Safety	15	(880)
Introduction	15	(1)
Section 10 of the 1987 Act and the general safety requirement	16	(2)
The General Product Safety Regulations	18	(1)
Directive 2001/95/EC on general product safety	19	(1)
Introduction	19	(1)
Relationship with sectoral directives	20	(1)
Products covered	21	(2)
Definition of a `safe product'	23	(5)
Presumptions of conformity	28	(3)
Definitions of `producer' and `distributor'	31	(2)
Obligations of producers and distributors	33	(4)
Withdrawal and recall of products	37	(5)
Exchange of information and rapid intervention situations	42	(1)
Delayed implementation	43	(852)
Appendix 1 Extracts From Consumer Protection Act 1987	895	(20)
Appendix 2 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products	915	(8)
Appendix 3 Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety	923	(18)
Index	941