What's next for UK product liability?

We recently wrote about the prospect of future reform of the UK product liability framework (here), which may see the UK’s product liability regime more closely aligned with the new EU Product Liability Directive (the revised PLD – read more here).

The Law Commission has now formally announced its review of the UK product liability regime as part of its 14^th work programme, The focus of the review appears, at this stage, to be on “emerging technologies”, including AI in particular.  Key issues that this project are expected to address include:

1. Whether the definition of “product” in the CPA should be updated to expressly include software (as in the revised PLD), whether supplied via tangible or intangible media. 
2. Whether the “long-stop” liability period of ten years should be extended, to reflect that “some products arising from emerging technologies can be upgraded iteratively”. Under the revised PLD, the long-stop “expiry period” is expressly extended from ten to 25 years in the case of defects which cause latent damage, but it also includes provisions to extend liability while the product remains within the manufacturer’s control (for example including software upgrades or updates once it has been placed on the market). 
3. Whether the “state of the art” (or development risks) defence should be amended to account for emerging technologies that can be updated iteratively.
4. Difficulties for claimants in pursuing claims with respect to “highly technical and opaque technology”, such as AI. 
5. Whether the definitions of “defect” and “damage” in the CPA should be amended to take into account the impact of emerging technologies.

Although this overview is high level, the terms of reference are similar to those which formed the basis of the Commission’s review of the 1985 Product Liability Directive that led to its more recent, consumer-friendly revision. For example, there are clear echoes of the revised PLD in the references to addressing “difficulties for claimants in pursuing claims with respect to highly technical and opaque technology”, the focus on the longstop and instances where this may in practice be extended, the continued appropriateness of the development risks defence and the underlying message throughout that there may need to be changes to adapt the regime to the demands of emerging technologies. In reality, of course, the revised PLD ended up going far further than would have been needed simply to e.g. bring software within scope or adapt the regime to AI or IoT technologies; the legislator fundamentally rebalanced the EU regime in favour of claimants and their lawyers.

Whether the UK will align its future product liability regime with the revised PLD remains to be seen, but it would not be a surprise if this is what ultimately ends up happening, given the terms of reference for the Law Commission review.

The timetable for this review project has not yet been announced, although we are expecting work to begin later in 2025.  Businesses involved in supplying products used by end-users in the UK should follow it closely to ensure they have an opportunity to engage with consultation in due course.