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Winter 2018/19
Contact us for an open and honest
discussion on: 020 7650 1200
postbox@leighday.co.uk
Twitter: @ExpectSafeFair
The Newsletter for Product Safety & Consumer Law
To put it simply,
people want
answers...
Expect
It’s Safe
Expect proudly
It’s Fair
supported by
Welcome to the Product
Expect It’s Safe, Expect it’s Fair
is a campaign set up to protect
Safety & Consumer
consumers from defective
products and unfair practices
and make consumers aware
Law newsletter
of their rights. We hope our
newsletter will show our At Leigh Day, we work the government in respect of food safety and
unwavering commitment to across all areas of through our work on the ongoing Independent
achieving justice for all those consumer protection; from Medicines and Medical Device Safety Review.
injured by defective products, inadequately labelled The common theme that links this broad
whether they be electrical food products leading to ranging work is that we seek to empower
devices, edible products or individual fatal incidents individuals against the Goliaths of industry
medical products. to falsely marketed cars affecting thousands. whose products adversely impact the lives
The department continues Our work leads us to take on some of the most of our clients. Whether they be patients
to be recognised as the top law powerful manufacturers and companies in the or purchasers, consumers need first-class
firm in the UK in the field of world, from the giants of the pharmaceutical protection more than ever before against the
Product Liability and Consumer industry, to household names like Pret-a- growing power of multi-national corporations
Law with individuals in the Manger and VW. The scope of our work is both – providing that protection is at the heart of
department being ranked as historic, as we seek justice for those injured what we do at Leigh Day. I hope that you will
leading practitioners. Chambers by contaminated blood products previously find this newsletter helpful in providing a small
and Partners Legal Directory provided through the NHS; but also forward window into the Team’s current case-load.
2019 have now ranked Jill looking, as we seek to use our experience as
Paterson as a band 1 litigator, a team to push for long-lasting regulatory Bozena Michalowska Howells,
making Leigh Day the firm changes, through our pro bono work, lobbying Head of product safety & consumer law
with the most “ranked” Product
Liability practitioners in the UK.
Contact us:
T: +44 (0)20 7650 1200
E: postbox@leighday.co.uk
W: Twitter: @ExpectSafeFair
W: www.leighday.co.uk
Published by Leigh Day
The views expressed in this
Newsletter are those of the author
and do not necessarily represent
those of Leigh Day. Reproduction
of the Leigh Day newsletter in
whole or part without permission
is strictly prohibited.
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It’s Safe
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02 The Newsletter for Product Safety & Consumer Law
“Things can only get better”
The consequences of fires to individuals,
families and our communities are far
reaching, traumatising, painful and
destabilising.
Which? 1reports that over 6,000 house fires
were caused by faulty appliances between 1
April 2014 and 31 March 2016. The issues
that need to be addressed regarding defective
white goods that cause these devastating
fires are sadly numerous, but must be tackled
head-on by the Government’s new Office for
Product Safety and Standards (OPSS).
The OPSS must adopt a “New Vision” to
ensure that manufacturers take responsibility
for the appliances they sell for use in our needs whilst delivering the safety outcomes as risk assessment and how a recall will be
homes, and to remove them from our homes that every citizen expects. This can only be communicated.
if they are unsafe. There must be no wriggle achieved through determined action and The guidance provided by the Code can
room if a manufacturer identifies a potentially a shared commitment to doing the things only be welcomed and, if followed, should
unsafe product. The EU Commission’s that matter, that drive change, and that provide better protection for consumers. It is
Rapid Alert System Rapex lists recalls of improve outcomes.” This is a laudable mission a great start, but needs to be followed with
products that are of serious risk to the statement that must be backed by action and further action and at a faster pace.
consumer. However, take a look at the weekly the OPSS has the opportunity to achieve this. In the Autumn 2018 Budget, Philip
reports and you will struggle to find a recall In March 2018, the OPSS published a Hammond claimed that the “era of austerity
relating to white goods. Fire is indiscriminate “Code of practice on consumer product safety is finally coming to an end”3. So now let’s see
and can endanger the life of one or of many. related recalls and other corrective actions”, more funding for the enforcement agencies,
It is clearly a serious risk. The recalls relating otherwise known as PAS7100:2018. The Code for Trading Standards, as well as more powers,
to choking hazards, electric shock, toxic was produced in conjunction with BSI. Part 1 so that they can ensure that unsafe products
chemicals in jewellery and personal wear, of the Code provides guidance for businesses do not reach our homes and are removed
novelty lighters, chargers and vehicles are as to good practice in respect of product rapidly when they are found to be the cause
numerous and are all serious. So why do safety recalls. Part 2 provides guidance for of fires.
white goods make such a rare appearance regulators, including in respect of monitoring
given the numbers of fires that reportedly incidents and supporting them in respect of
started with a defective white good? any necessary corrective action.
How can things get better? It’s simple Such guidance was long overdue and Jill Paterson, Partner and
- clarification and enforcement of product was something highlighted as necessary by Andrew Vaughan-Davies,
safety laws; funding for law enforcers; Consumer Champion, Lynn Faulds Wood, in Paralegal and former Fire
realistic and meaningful risk assessments by her independent review titled “UK consumer Investigation Officer in
manufacturers when a product is implicated product recall”, which was published in the London Fire Brigade
as the cause of fire; consideration of February 2016. In her review, Ms Faulds Wood
reasonable worst case scenarios. Devastating recommended step-by-step guidance for
fires in houses and tower blocks are not businesses on product recall, including how to
scenarios. They are worst case and they are conduct proper risk assessments and use of
reality. clear language.
The OPSS must focus on the products that The Code encourages businesses to have a
seem to start these fires, to prevent the lives product safety incident plan (PSIP) in place in
of consumers being destroyed both physically advance of an incident and with commitment 1. https://www.which.co.uk/news/2018/02/
and mentally. from senior management. In developing revealed-the-brands-linked-to-the-most-
In the foreword to the OPSS’s Strategy2, the the PSIP, businesses are encouraged to appliance-fires/
new Minister for Small Business, Consumers get input from a number of relevant areas,
and Corporate Responsibility, Kelly Tolhurst, and to consult with the relevant Market 2. Strengthening National Capacity for
highlights that “The safety of individuals, Surveillance Authority. The Code suggests Product Safety – Strategy 2018 - 2020
families and communities is a top priority that a PSIP should include a number of
for Government….we must ensure that our different elements, including a plan in respect 3. https://www.bbc.co.uk/news/uk-
approach to regulation responds to changing of product and customer traceability, as well politics-46010550
www.twitter.com/ExpectSafeFair 03
Food Safety off site) and non- prepacked foods (made
on site).
The UK Food Information Regulations
hygiene at the manufacturing, storage or during
the preparation process.
Following the consumption of contaminated
2014 (the Regulations) require 14 of the most food, symptoms can either start to occur within
How safe is the food you’re eating? common allergens (comprising eggs, milk, fish, a few hours or may present later. Depending
The Food Standards Agency (FSA) oversees crustaceans, molluscs, peanuts, tree nuts, sesame on the strain of the bacteria or virus the illness
standards of food hygiene and enforcement of seeds, cereals containing gluten, soya, celery can last for a few days to a few weeks. When an
such standards throughout England, Northern and celeriac, mustard, lupin, sulphur dioxide, individual’s own immunity is unable to battle
Ireland and Wales. The FSA issues food recalls and and sulphates) to be identified to the consumer. the illness, it can develop into more serious
allergy alerts distributing warnings of unsafe food. Under the Regulations, food businesses are conditions such as Salmonella or rare conditions
In addition, key networks such as the European afforded significant discretion as to how they such as Guillain–Barré syndrome.
Food Safety Authority (EFSA) and the Rapid Alert communicate such allergen information to
System for Food and Feed (RASFF) underpin consumers. They can opt to provide allergen
food safety and standards by sending food risk information orally, providing there is readily
notifications to EU Members. discernible signage, encouraging the customer to
Nevertheless, there is a question as to ask a member of staff for allergen details.
whether such protocols go far enough to protect Leigh Day represents the family of 15
consumers and whether more needs to be done year old Natasha Ednan-Laperouse who died
to regulate food safety. from anaphylaxis as a result of inadequate
Which? recently investigated food safety allergen labelling protocols. Natasha’s
in the UK’s top restaurants, takeaways, corner Inquest highlighted the deficiencies of
Philip Earlam and his son
shops and care homes. They uncovered that of the Regulations and the Coroner, Dr Sean
the high-risk food businesses in the UK, over Cummings, wrote to Michael Gove, Secretary Leigh Day are instructed by Mr Earlam
a third of local authority areas failed to meet of State for the Environment, Food and Rural who has been diagnosed with Miller Fisher
even minimum standards of food hygiene Affairs requesting a review of the Regulations. syndrome, a nerve disease characterised
in 2016/2017. In addition, local authorities Leigh Day has called on Michael Gove to by muscle weakness and abnormal muscle
responsible for enforcing food safety are take immediate action in response to the coordination, paralysis of the eye muscles,
increasingly under-resourced. Food safety is Coroner’s report. The Regulations require urgent absence of the tendon reflexes and respiratory
therefore a postcode lottery. amendment to compel food businesses to list all failure caused by food poisoning following his
The consequences of food safety breaches ingredients including allergen information and attendance at a work event.
which cause food poisoning / severe allergic Leigh Day are supporting the Ednan-Laperouse Unfortunately, Mr Earlam’s case is not rare and
reaction to individuals can be fatal and the family in calling for ‘Natasha’s Law’ to be incidents of food poisoning continue to be on the
effect on their families is devastating. Leigh implemented. The Food Safety team are pleased increase. As the consequences of food poisoning
Day represents Claimants who have suffered to report that in response to Natasha’s case vary, it is important for individuals and food
life threatening and fatal allergic / food Michael Gove has confirmed the following: establishments to be vigilant when it comes to
poisoning reactions. “Since receiving the coroner’s report, we have food hygiene. This would ensure that food is safe
been working at pace with the Food Standards and fit for human consumption otherwise the
Agency and businesses to review the current consequences of falling standards can be fatal.
allergen labelling rules. We are aiming to bring
forward concrete proposals to change the law What needs to change:
around the turn of the year. Consumers must have confidence in the
“I also want to make clear that businesses food they consume. How do we restore that
do not need to wait for the law to change to do confidence?
Natasha Ednan-Laperouse
the right thing. They should be doing all they • Increased Government funding for enforcement
Food Allergies can now to make sure consumers have the agencies to police food safety laws; and
NHS digital reported that the number of children information they need to stay safe.” • Punitive sanctions for those breaching food
taken to hospital with life threatening allergic Leigh Day shall continue to lobby for safety laws.
reactions has increased to 76% over the last 5 meaningful changes to the law in relation
years. With no known cure for food allergies, it to the way in which allergen information is We need positive change and the Government
is vital that food businesses adopt a responsible communicated to allergy sufferers and for full needs to take immediate steps to ensure that
and integrative approach to developing and ingredient labelling. the food we eat is safe and properly labelled
implementing allergen protocols throughout to prevent consumers suffering life changing
the food supply chain; from packaging, to Food poisoning injuries and to prevent further fatalities.
preparation, to retailing of food. The effects of food poisoning range from
The European Food Information to nausea and vomiting, diarrhoea, fevers and Michelle Victor,
Consumers Regulation No 1169/2011 (FIC) stomach cramps to serious illnesses affecting Partner
was intended to improve food safety for the nervous system.
allergy sufferers when eating out. FIC draws There are various causes of food poisoning, the
a distinction between information to be most common of which is bacteria and viruses
provided relating to pre-packed foods (made which can often occur as a result of poor food
04 The Newsletter for Product Safety & Consumer Law
Infected Blood Inquiry
Opening statements in the Infected Blood
Inquiry finally commenced in September
2018 with a number of impassioned
statements being made by individuals
infected and affected by this disaster.
Statements were also made by Sir
Brian Langstaff (the Inquiry chair), legal
representatives for various groups of core
participants from all over the country and
representatives of various organisations
including the Department of Health and Social
Care and NHS Blood and Transplant.
It is hoped that the Inquiry will provide
individuals, and family members, with
answers to questions they have waited
decades for and that the extent of any cover
up by the Government comes to light.
Leigh Day are representing over 300
individuals at the Inquiry. Gene Matthews,
partner in the consumer law and product
safety department, will also be bringing
a group negligence claim against the
Government on behalf of individuals who
became infected with the Hepatitis C Virus
from NHS supplied blood.
Hepatitis C virus is a serious condition
and can cause physical and mental fatigue,
cognitive symptoms (often described as “brain
fog”), depression, liver cirrhosis, liver cancer
and can ultimately be fatal.
There have been a series of legal cases
in which victims have sought compensation.
However, with the exception of one case (a
claim brought under the Consumer Protection
Act) no legal case has ever been brought to
trial. The result is that the Government has
never been held liable in negligence for the
injuries caused to those who suffered as a
result of receiving infected blood and/or blood
products.
We believe crucial documents will finally
be made available during the course of the
Inquiry. We agree with our clients that fair
compensation should be paid to victims. campaign, which started in the mid-1990s,
The Government has been trying to make was far from adequate and many individuals, Gene Matthews, Partner
amends for the scandal by making piecemeal sadly: do not yet know they carry the virus; and Ruth Roberts,
payments under various “no-fault” schemes. have only just found out; or, indeed, have Solicitor
Massive strains have been placed on our found out too late. We are hopeful that the
clients’ lives, and the lives of their family, as a Inquiry will provide answers and that it will
result of becoming infected by blood or blood assist us to obtain full and fair compensation,
products received through the NHS. These which truly reflects the substantial losses
payments do not begin to cover the pain, the infected and affected individuals have
suffering and loss of quality of life caused to suffered.
the victims of this tragedy.
The situation has been compounded by
the fact that the Government’s “Look- back”
www.twitter.com/ExpectSafeFair 05
The Cumberlege Review and Sodium Valproate: 40 years is long enough In February 2018, Jeremy Hunt, then Secretary of State for Health, announced that there would be a Government ordered Review focused upon the extent to which manufacturers, regulators and clinicians responded robustly and meaningfully to concerns raised by patients injured by medical products. The Review, chaired by Baroness Cumberlege, and formally known as the Independent Medicines and Medical Device Safety Review (IMMDS), is now underway. The Review has chosen 3 specific products through which to look at the problems faced by patients in this area, including: • Primodos – a hormone based pregnancy test used widely in the UK between 1953-1975 which campaigners allege has caused birth defects in their children • Sodium Valproate – a drug to control epilepsy, marketed in the UK since the 1970s and still available, that is alleged to have caused physical and cognitive birth defects in children born to mothers using the drug at the time of conception • Vaginal mesh – a medical device, which was recently suspended from use in the UK, allegedly associated with extreme pain and damage to internal organs of patients who undergo implantation Leigh Day have been working with campaigners affected by Sodium Valproate, also known as the drug Epilim. In April 2018, Leigh Day, working with 2 of the main support groups, OACS Charity and FACS-aware, and other experts, submitted Epilim usage, particularly in circumstances and many continue to struggle with the fact a 200page document to the IMMDS Review where it is alleged that the government’s of their own health condition, as women with setting out the moral and legal case for drugs regulator and the manufacturer epilepsy, in addition to caring for children a full Public Inquiry to be ordered, with knew that the drug could cause harm to who are often severely disabled as a result of the intention of ensuring that individuals unborn children, and yet they chose not Epilim induced FVS. and families affected by Epilim exposure to communicate this information to the in utero, are finally given answers to women affected. For further details about the IMMDS long overdue questions, including ‘why In some cases the use of Epilim by Review please see here: IMMDS Review, Epilim was prescribed for pregnant pregnant women resulted in their children visit: www.immdsreview.org.uk women, with epilepsy, without ensuring suffering from Foetal Valproate Syndrome, that the teratogenic affects of the drug also known as FVS, which includes a range on the child were fully communicated’. of neurological and physical injuries, Sarah Moore, Many families have waited more than 40 associated with in utero exposure to Epilim. Associate Solicitor years for that question to be answered. In France, the Government has already The Leigh Day submission also argues set up a scheme to compensate individuals that compensation should be paid to the affected, and yet in the UK, to date, families individuals and families injured through affected have received no compensation 06 The Newsletter for Product Safety & Consumer Law
Volkswagen NOx Emissions
Group Litigation
We have been appointed joint lead solicitors in The claimants are claiming damages and/or investing in properties in the US. The
the largest group action to ever go through the a discount for fraud, breach of contract, breach investments were arranged and recommended
English courts. Well over 100,000 claimants of EU statutory duties, and under the Consumer by an English property investment company.
have joined the action to claim compensation Protection from Unfair Trading Regulations The claim was for fraud and breach of fiduciary
from the Volkswagen Group in relation to the 2008. The losses claimed include reduction duty against the company and its director/
pollution emissions test cheating scandal. in resale values, reduced fuel economy and owner. The company’s insurer denied cover
In September 2015, it emerged that the performance following the cheating software and defendants claimed they had insufficient
Volkswagen Group, including VW, Audi, SEAT being fixed, and for distress/upset. The deadline assets to pay the claims in full, but after very
and Skoda, had sold millions of vehicles to express interest in joining the group action lengthy three-way negotiations our clients
worldwide that had nitrogen oxide emissions expired on 26 October. Currently, the claimants reached a settlement under which they will
test cheating software installed in them. are preparing to issue and serve proceedings recover a substantial proportion of their losses.
The software detected when a vehicle was by 19 December and preparing individual
being tested for emissions and then reduced schedules of information setting out the details
nitrogen oxide emissions during testing of their claim by 15 February, in advance of the Chris Haan,
to allow it to pass regulatory emissions. first CMC to be listed in March 2019. Associate Solicitor
Real world emissions were far higher than
regulatory requirements, with adverse US property investment fraud group action
consequences for the environment and We have been acting for 36 people who in
human health. many cases lost their retirement savings
www.twitter.com/ExpectSafeFair 07
Expect
It’s Safe
Expect proudly
It’s Fair
supported by
Contact us for
a confidential
discussion
+44(0)20 7650 1200
postbox@leighday.co.uk
@ExpectSafeFair
www.leighday.co.uk
Leigh Day is a specialist
law firm with some of the
country’s leading personal
injury, product liability, clinical
negligence, employment and
discrimination, international
and human rights teams.
Unlike other law firms,
we act exclusively for
claimants who’ve been injured
or treated unlawfully by others.
We are based in London,
Manchester and Liverpool.
Published by Leigh Day
Reproduction of this
brochure in whole or part
without permission from
Leigh Day is strictly prohibited.
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