Product Liability legislative reforms: A snapshot of the UK's position

There continues to be significant developments afoot across the Product Liability legislative landscape in both the UK and the EU, disrupting the relatively settled positions that have existed since the 1980s.

The European legislative reforms represent a comprehensive shake up of the long-established positions, as the EU attempts to catch up and keep pace with technological advances in products, to ensure sufficient protections are in place, while seeking to maintain a fair balance between the interests of consumers and producers.

Our last article focused on the changes in the EU with the new PLD - Navigating the New EU Product Liability Directive: Key Changes and Impacts : Clyde & Co.  In this article Alex Marks, Thomas Long and Scarlette Reed of Clyde & Co consider whether the UK will look to follow the EU’s lead or whether there will be some divergence on how Product Liability reforms are ultimately implemented.

The EU

As discussed in our Article “Navigating the New EU Product Liability Directive: Key Changes and Impacts : Clyde & Co”, member states voted on and then signed the final wording of the new Product Liability Directive (2022/0302) to replace the Product Liability Directive (85/374/EEC). The Directive was published in the Official Journal of the European Union on 18 November 2024 and its provisions will come into force in all Member States by 9 December 2026.

The New Directive will completely alter the legal landscape for product liability claims in the EU and its ramifications will be extensive for manufacturers and developers, most notably by creating a consumer-friendly regime and extending the definition of product to include digital manufacturing files and software.

The UK

While the EU is proceeding to undertake a radical overhaul of its existing regulatory framework, reform in the UK remains in its infancy despite the Law Commission identifying “product liability and emerging technology” as a concern and potential area of review back in 2021.

The UK’s product liability regime is set out in the Consumer Protection Act 1987 (“CPA”), which implemented the 1985 Product Liability Directive into UK law. Under the CPA, strict liability attaches to the Producer of a defective product if a defect in that product causes harm.

However, despite the CPA now being over 35 years old, the fundamental issues of ‘defect’ and ‘causation’ have continued to be the subject of intense debate over the last two decades.

In 2001 the High Court’s decision in A v The National Blood Authority (“A v NBA”) set out what has since been considered a relatively controversial approach to the issue of defect. Under s.3 of the CPA a product is considered defective if its safety “is not such as persons generally are entitled to expect”. However, in A v NBA the court was persuaded that this meant the “legitimate expectation” of persons generally, the effect of which was to distil the meaning of defect. 

15 years later the tide turned in favour of manufacturers when in Wilkes v DePuy International Limited (“Wilkes”) the same court denounced the decision in A v NBA. In Wilkes the court said that the use of the phrase “legitimate expectation” and thereby the consequent attempt to reformulate s.3 of the CPA was “unnecessary and unhelpful”. 

The decision in Wilkes also clarified that the question of whether a product suffers from a defect must precede any questions of causation. In this regard the court specifically rejected the idea that the first step in considering whether a product suffered from a defect was to look at “the harmful characteristic which caused the injury” (which had been the learned judge’s approach in A v NBA). 

Two years subsequently the High Court gave another important product liability decision in Gee v DePuy International Limited (“Gee”). Unsurprisingly in Gee, the Claimants sought to rely on the Court’s earlier decision in A v NBA. However, the High Court rejected those submissions and firmly endorsed the decision in Wilkes, expressing that “proof of a causal connection between defect and damage cannot rationally or even conceptually be attempted without ascertainment of whether there is a defect, and if so, what that defect might be.”

Manufacturers were pleased that the court also further distanced itself from its earlier decision in A v NBA, stating that the shortfalls with the judge’s approach in that case were now “self-evident”.

Where next for the UK?

The UK is arguably operating within a regime for product liability cases which is supportive of manufacturers when defending their products, albeit the courts are still quick to support claimants who sustain considerable injury.

Given the changes occurring in Europe and the petitioning by claimant firms to ensure that product liability laws address any inequality of arms between claimants and defendant manufacturers, the Office for Public Safety and Standards’ 2023 Product Safety Review Consultation invited public feedback in respect of the UK’s current approach to product safety and the fitness of the existing regulatory framework. Whilst the nature and extent of any changes to be implemented remains unclear, the Consultation suggests that the focus will include consideration of the extent to which the CPA is satisfactory considering the substantial technological advancement that has taken place since its enactment over three decades ago.

Under the CPA as currently drafted:

• A “Product” includes “goods or electricity and includes a product which is comprised in another product” but does not apply to services.  As a result, there is uncertainty in respect of the Act’s application to the modern-day product market, including digital products and goods which contain AI software. 
• The definition of a “Producer” specifically includes the product manufacturer or the entity which has imported the product into the UK (with limited potential application to suppliers). The CPA therefore fails to consider software or digital service providers. 
• The Claimant bears the burden of proof and must demonstrate that the Product in question is defective and that the defect has caused harm. There are no presumptions that a defect exists in specific circumstances to assist a Claimant, for example where a case is technically or scientifically complex and therefore difficult to prove.  

In light of the above, and the recent changes brought about by the revised Product Liability Directive in Europe, there will be significant divergence in how claims will be handled in the UK compared to the rest of Europe.

The Retained EU Law (Revocation and Reform Act 2004) allows the UK Government to revoke or reform EU Law. The Digital Markets, Competition & Consumers Bill will shortly come into law, replacing the Consumer Protection from Unfair Trading Regulations 2008, enhancing consumer protection rights. There is uncertainty whether a similar approach will be taken to the CPA, as this is also derived from EU legislation, and how the CPA wording will be amended. This uncertainty extends to how the Courts will treat existing case law when the CPA is revoked and replaced by new legislation.

On 4 September 2024, the House of Lords published the Product Regulation and Metrology Bill. The Bill enables  the UK Government to ‘make the sovereign choice to mirror or diverge from updated EU rules’ to ‘maintain high product safety while supporting business and economic growth’. The UK product safety regime requires updating given the advances of new technologies and risks, but the UK Government is not required to simply follow the widescale changes as set out in the EU Product Liability Directive. Instead, the UK Government can consider where alignment with EU Law would benefit UK businesses and diverge from this where there is a perceived benefit to do so. Of course, UK businesses that trade in products domestically and across the EU may prefer that the UK Government ultimately seeks alignment with EU law to ensure as little disruption to their businesses and supply chains, as the new product regime develops; but will naturally be reluctant if the burden of proof is placed on them rather than a claimant.

It is of course open to the UK Government to choose to adopt a more finely balanced approach to the interests of both consumers and producers than the proposals being adopted by the EU, but this will not be clear until secondary legislation becomes available (expected in 2025).

Conclusion

Whilst reform of the UK Product Liability regime appears to be inevitable, the extent to which any changes will mirror those to be implemented in the EU is currently uncertain. It remains to be seen whether the UK will look to adopt any or all of the new European directive and a wait, watch and learn approach is likely to be adopted.

However, the UK would appear to have left the door open for change with the introduction of the Product Safety and Metrology Bill. Either way from a manufacturer’s perspective there will be some valid concern that there may be significant divergence between the UK and EU, in terms of how each jurisdiction will legislate for Product Liability claims and which party (producer or consumer) will ultimately benefit the most. In light of this, and as matters stand, there is a divergence of how product liability claims may be run on the European continent with the UK being manufacturer friendly and the EU entering a phase where the new Directive is pro-Claimant. This will raise interesting challenges for manufacturers operating across jurisdictions and how they approach the defensibility of their products.

Alexander Marks, Senior Associate, Thomas Long, Associate and Scarlette Reed Associate are members of Clyde & Co’s Product Liability, Safety and Recall Group led by Partners, Peter Barnes and Charlotte Kelly.