Could consumer protection laws help defective implant claimants?

The demise of breast implant manufacturer Poly Implant Prothèse – the French company that went into liquidation earlier this year after it emerged it had used industrial rather than medical grade filler – has left UK-based patients without obvious remedy if they cannot prove that it is clinically necessary to have the faulty implants removed.

This will be the case for a substantial category of potential claimants who will want these implants removed and possibly replaced.

One possibility is section 4 of the Supply of Goods and Services Act 1982, which provides that in a contract for the supply of services (in this case, implant surgery) “there is an implied condition that the goods supplied under the contract are of satisfactory quality”.

It is at least arguable that implants made of industrial standard silicone infringe this requirement. And it is this provision that may prove essential in the event of having to pursue an action under section 75 of the Consumer Credit Act 1974, where the private clinic is insolvent or refuses to offer corrective surgery.

Joint and several liability

The Consumer Credit Act 1974 has lived a varied life. Its key provisions are often protean and their clarity of drafting makes them potentially applicable to uniquely contemporary and human issues.

Patients with PIP implants could in particular seek to rely on section 75, which states: “(1) If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.”

This provision firstly requires a regulated “debtor-creditor-supplier agreement”.
This will exist where there is a business connection between the creditor and supplier or more specifically, an agreement intended “to finance a transaction between the debtor and a person (the “supplier”) other than the creditor” (section 11 (1) (b)) and “made by the creditor under pre-existing arrangements…between himself and the supplier” (section 12 (b)) where the cash price is between £100 and £30,000 (the current top limit).

So, in this case, a credit card company for example, may have had “arrangements” with private clinics, whereby the clinic agrees to accept the provider’s credit cards from patients as a mode of payment for the implants provided. Such tripartite relationships are known collectively as “three-party” debtor-creditor-supplier agreements.