Allen v Depuy International Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 18 March 2014 |
| Neutral Citation | [2014] EWHC 753 (QB) |
| Date | 18 March 2014 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HX12X01318 |
[2014] EWHC 753 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: HX12X01318
Hugh Preston QC & Conor Dufficy (instructed by PLI Legal Services) for the Claimants
Charles Dougherty QC & Alexander Antelme (instructed by Kennedys Solicitors) for the Defendant
Hearing dates: 03 March 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimants ("Cs") claim damages for personal injury. I trust they will not be offended if, rather than referring to them by name, I refer to them as C1, C2 etc. The Defendant ("D") is a company registered in England. It manufactured prosthetic hip implants in England.
None of the Cs, has, at any material time, been resident in England. C1, C2, and C4 had prosthetic hips implanted in New Zealand. C3's hip was implanted in Australia and C5 – C10 in South Africa.
As D is domiciled in England, Cs are entitled as of right to bring their claim here, whether or not England is otherwise the appropriate forum. The dispute before me concerns preliminary issues on the applicable law and, if English law applies to any claim, does the Consumer Protection Act 1987 apply?
The preliminary issues in full are set out in the order of Master Cook dated 1 November 2013 which states:
UPON HEARING Leading Counsel for the Claimants and Leading Counsel for the Defendant
AND UPON the parties having agreed that for the purposes of section 11(2)(a) of the Private International Law (Miscellaneous Provisions) Act 1995 only, the injury was sustained in each case in the country in which the Claimant was when he suffered the first alleged symptoms
IT IS ORDERED THAT:
1. There shall be a preliminary issue trial in respect of each Claimant's claim, at which the following issues will be determined:
(i) Whether, for the purposes of Article 31 of the Rome II Regulation, the event giving rise to damage in each case occurred:
(a) prior to 11 January 2009, or
(b) on a date to be determined, potentially on or after 11 January 2009.
(ii) Insofar as it is determined in respect of any Claimant that the event giving rise to damage occurred potentially on or after 11 January 2009, the court shall give further directions for the determination in each case of the relevant date (whether at a further preliminary issue hearing or at trial).
(iii) In relation to each case where it is determined or agreed that the event giving rise to damage occurred prior to 11 January 2009, for the purposes of Article 31 of the Rome II Regulation, the law applicable to that claim pursuant to the Private International Law (Miscellaneous Provisions) Act 1995.
(iv) In the event that English law is found to apply to any of the Claimant's claims, whether the Consumer Protection Act 1987 applies to such claims……
Cs represent a cross section of a much larger group of a few hundred overseas residents from a wide variety of countries each implanted with D's hip implants. All the other claims have been stayed pending this ruling on preliminary issues in the 10 sample claims.
Relevant Statutory Material
The relevant statutory material comprises:
(i) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations ("Rome II").
(ii) The Private International Law (Miscellaneous Provisions) Act 1995 ("The 1995 Act").
(iii) The Consumer Protection Act 1987 ("CPA") and relevant allied European material.
Appendix I to this judgment contains relevant extracts.
Does Rome II Potentially Apply to C2 – C10?
The question can be simply stated. It is this: Did the events giving rise to damage (EGRD) occur before 11 January 2009? 1 On Cs' case the EGRD for C2 – C10 occurred prior to 11 January 2009. On D's case the EGRD might have occurred on or after 11 January 2009. 2
The outline facts, by reference to the critical date of 11 January 2009, are as follows:
(i) Pre 11 January 2009 — manufacture and despatch from the factory of the defective prostheses. 3
(ii) Pre 11 January 2009 — date of all hip operations implanting the prostheses.
(iii) Not determinable (until after hearing detailed evidence) whether pre/post 11 January 2009 — adverse reaction to metal debris (ARMD). ARMD may occur at or within a short time of implantation. It may occur many years after. After it occurs, symptoms and signs generally develop quickly. The symptoms may be pain/functional deficit. The signs are radiological, consistent with fluid collection, inflammation and/or destruction of soft tissues and/or bone and loosening of the prostheses.
Cs' contention is that the EGRD is (i) or, failing that, (ii). D says that it is (iii).
Clearly manufacture without implantation could not cause injury. According to the medical evidence, implantation per se does not cause injury. Once a prosthesis is implanted it begins to wear and produce debris. Absent debris, no reaction would occur. However ARMD needs to occur so as to produce signs and symptoms. It appears that by no means all the prostheses go on to cause ARMD and, thereafter, symptoms.
Cs rely on a number of decisions which clarify the words "the court for the place where the harmful event occurred or may occur". These words are to be found in Article 5(3) of Regulation (EC) No. 44/2001 (Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters) in matters relating to tort, delict or quasi-delict. That Regulation concerns the rules governing jurisdiction rather than applicable law. In that particular context, the European Court of Justice has recently determined that in a case where a manufacturer faces a claim of liability for a defective product, the place of the event giving rise to the damage is the place where the product in question was manufactured. 4 In the Kainz case, the court pointed out in paragraphs 19 – 28:
(i) The provisions of Regulation No. 44/2001 must be interpreted independently by reference to its scheme and purpose.
(ii) Although Recital 7 in the preamble to Rome II seeks to ensure consistency in the substantial scope and provisions of Rome II and Regulation No. 44/2001, that does not mean that the provisions of 44/2001 must for that reason be interpreted in the light of the provisions of Rome II.
(iii) The objective of consistency cannot in any event lead to the provisions of Regulation No. 44/2001 being interpreted in a manner which is unconnected to the scheme and objectives pursued by it.
The first point is that there is a clear distinction between when "damage occurs" and the EGRD. 5
D submits that the EGRD should be:
(a) when the process leading to the damage has occurred — i.e. the biological reaction leading to injury or
(b) if it is not possible to identify a relevant event other than the damage, then the date of damage.
In reality it may be very difficult to distinguish between (a) and (b), since once a reaction occurs it is common ground that symptoms and signs will generally, though not always, develop quickly. D says that this reflects the natural understanding of Cs' complaints i.e. the biological reaction leading to damage and injury that is the EGRD. 6
I do not accept D's case. This is for the following reasons:
(i) It is not permissible in my judgment to equate, even as a long stop, the ERGD with the date of damage.
(ii) The fact that Kainz determines that the provisions of 44/2001 must not, for the reason of consistency, be interpreted in the light of Rome II, does not mean that the converse should not apply. There is good reason for Recital 7 to Rome II. It refers to consistency in the "substantial scope and provisions." I accept that Rome II should not be a slave to the objective of consistency and that this objective should not lead to Rome II being interpreted in a manner unconnected to the scheme and objectives which it pursues. However, the court should where possible give effect to Recital 7.
(iii) Kainz, and the other authorities on 44/2001, lead to the conclusion that the EGRD should be the manufacture and despatch from D's factory of the protheses. Is there any reason to have a different EGRD for Rome II?
(iv) D submits that Regulation 44/2001 is referring to place, not time, jurisdiction not to applicable law. Also, it is concerned with jurisdictional issues such as proximity of witnesses and gathering of evidence. It is not concerned with identifying a single point of time. This is correct, but does not of itself lead to Rome II being interpreted in a manner unconnected to the scheme and its objectives 7 if a consistent approach is adopted to EGRD in 44/2001 and Rome II.
(v) D also points out that Rome II applies to all non contractual obligations, not just tort/delict/quasi-delict. 8 Therefore the scope of Rome II and 44/2001 does not precisely match. Nevertheless, in tort/delict they do match. In those cases there is good reason for consistency of approach. The ERGD in, say, unjust enrichment may fall to be considered and dealt with on the facts of the case which presents, but that does not detract from consistency of approach in the many cases where that is possible and appropriate, as here.
(vi) D submits that Rome II [Recital 31 and Article 14] permits choice of law, subject to protecting weaker parties by allowing choice only after the EGRD has occurred. Therefore, D says that protection is meaningless if a consumer can agree a different choice of law at a stage after the date of manufacture/distribution. However...
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