Bringing a product liability claim against a company can be fraught with difficulty.

But claimant firms say they should not be written off yet, reports Grania Langdon-Down

Product safety issues have come a long way since the 1932 House of Lords ruling in Donoghue v Stevenson, one of the first cases every law student learns.

They are headline news, from the measles, mumps and rubella (MMR) vaccine to the potential of mobile telephones to cause brain damage, from the health implications of genetically modified food and the risks from passive smoking, to obesity and deep-vein thrombosis on long-haul flights - not to mention Coca-Cola's recent recall of its controversial Dasani water.

But investigate bringing a multi-party claim against, for example, the manufacturers of a meat-substitute product that some consumers maintain caused them an allergic reaction, and it quickly becomes clear that the big group actions that used to dominate product liability work are at a crossroads.

Mark Harvey, partner and head of Cardiff-based Hugh James's product liability practice, has been contacted by hundreds of people claiming to have been affected by the meat substitute.

However, he says the options for bringing a claim are increasingly limited.

'Public funding is ostensibly not available unless you can demonstrate sufficiently wide public interest, while conditional fee agreements (CFAs) leave claimants vulnerable because of the difficulty of finding after-the-event insurance to protect them from the defendant's costs if they lose.

'However, this is wrong because you end up only being able to bring a claim if you can demonstrate people suffered almost catastrophic injuries - and this worries me.

I can see the argument that if injuries aren't that serious, why should money be spent on bringing claims?

'But there is the issue of public control - should a company be able to get away with producing something which causes minor injuries and only get caught out when the injuries get serious?'

For Anne Ware, a defendant lawyer and product liability partner at City firm Davies Arnold Cooper, the decision by the Legal Services Commission (LSC) to withdraw funding from the MMR and Gulf War syndrome cases recently is an example of the 'huge sea change' that has come about in this practice area.

'Group actions don't have a great track record in this country and the LSC has finally come to realise that.

Many of the recent claims have been too speculative or too expensive, so this type of litigation has reached a crossroads.

It is a fundamental change for our clients, who are absolutely delighted,' she says.

Paul Bowden, the litigation partner heading up City firm Freshfield Bruckhaus Deringer's products practice, agrees: 'If you talked about product liability in the UK five years ago, people would immediately have thought of the big, legally aided, multi-party actions against drug companies.

When you talk about product liability today, I would put a question mark over the use of "liability", because lawyers working intensively in this area are dealing with a far wider range of issues on a daily basis than claims by consumers.

'The regulation of products is now the most important dynamic in terms of clients' need for legal advice.

The level and way EU regulations and consumer protection laws have been implemented across Europe are as disparate and as unco-ordinated as probably any other area of EU law - which is good news for lawyers.'

Product work, he says, is now populated by administrative law and regulatory specialists, while the divisions between it and intellectual property, for instance over product labelling, and environmental law, with new restrictions on the disposal of goods, are breaking down.

For John Meltzer, partner and head of City firm Lovells' product liability practice, lawyers working in this field are 'unquestionably' doing more advisory work on the EU's regulatory regime, which is being strengthened by the newly amended General Product Safety Directive 2001.

The European Commission recently asked Lovells to survey product liability laws throughout the European Union.

'We identified problems such as the way courts interpret essential provisions differently.

For example, a court in the Netherlands decided that contaminated blood was defective but that the suppliers had a defence under the directive, while the UK courts decided the opposite.

Claimants also have a choice whether to bring an action under domestic or European law.

'However, we concluded that there was no case yet for introducing a uniform system.'

When it comes to litigation, Mr Meltzer has not seen any falling off in cross-border actions - Lovells is currently involved in cases in more than 20 different jurisdictions.

However, there are fewer English and Welsh group actions than in their heyday of the 1980s, he says.

Lovells acts for Merck, one of the manufacturers of the MMR vaccine.

Mr Meltzer says: 'The LSC will be very careful before committing itself to funding in future, particularly where claimants don't have the scientific support needed to succeed and are looking to the LSC to fund research.'

However, claimant lawyers stress group actions should not be written off yet.

It is a tough area - Mr Harvey reckons there are only a handful of firms with the technique, size and wealth to run this type of case on a CFA basis, while the LSC expects lawyers to work initially at their risk rate of 70 an hour, which means cases being run at a loss.

However, he has recently received public funding for a group action involving about 3,000 people prescribed the anti-depressant drug Seroxat, while David Body, litigation partner of Irwin Mitchell in Sheffield, is working on a potential group action involving pregnant women with epilepsy who were given anti-convulsant drugs.

Mr Harvey, who is secretary of the Association of Personal Injury Lawyers, says: 'At the moment, the Treasury is looking at the bills from the MMR and Gulf War syndrome cases and thinking "how much?" But we are fighting cases in a much more streamlined way and, if we get one or two notable successes in the next year or two, I think the LSC will look at these actions with a more relaxed attitude.'

Richard Meeran, a product liability partner with London-based claimant firm Leigh Day & Co, agrees that the problems with funding, and in particular with the risk and cash-flow burden involved in CFAs, mean law firms have to be very careful.

'But it doesn't stop us doing them - we have a couple in the pipeline.

Litigation may be tougher to bring but we are inventive and will try different approaches.

'One development is our involvement in a class action in the US on behalf of European recipients of a heart valve.

It is also not unrealistic to suppose that, in the fairly near future, cases may be brought by English claimants in other EU states and vice versa.'

Ireland, Germany and France are currently considering introducing US-style class actions.

However, Professor Mark Mildred, professor of litigation at Nottingham Law School, says it would be a change too far for England and Wales.

'The problem here is that the Civil Procedure Rules put all the power in the hands of the judges - which doesn't make it wrong but does make it unpredictable.'

Professor Mildred, who acts as a consultant to mainly claimant law firms, predicts that the next big question in the litigation field is how the 2001 judgment in the Hepatitis C case - which set the standard for Consumer Protection Act 1998 cases - will be applied to the new crop of group actions.

Mr Body agrees: 'I think we will see a number of other cases come to court about this area of the law because there is more to be determined - either to move things forward or to attempt to close the door, depending on which side you sit.' One issue he wants addressed is the strictness of the Consumer Protection Act's ten-year longstop, which means children may lose their chance of a remedy before they know they have one, 'and that is a terrible injustice'.

The key skill for a good product liability lawyer is patently versatility.

Mr Harvey throws in 'a sense of humour and the patience of Job when dealing with public funding.

The modern lawyer has to be able to master complex scientific and medical issues - while not being afraid of getting someone else to understand them for you if necessary - as well as having the management skills to handle multiple claims'.

A desire to challenge the status quo is also important.

Freshfields currently has more than a dozen legal challenges on the go against various pieces of product regulation, while, on the claimant's side of the fence, Mr Harvey would like to see an end to transferable costs and a possible reversal of the burden of proof.

'At the moment, virtually all cases involve David and Goliath - and we would very much like Goliath brought to his knees to give us a fairer fight.'

Grania Langdon-Down is a freelance journalist