Product Liability reform: Law Commission's Terms of Reference now published

Further detail on the Law Commission’s review of the product liability regime in England and Wales has now been provided through a Terms of Reference, published on 8 December 2025 (here).

To recap, the Law Commission began this review in the summer as part of its Fourteenth Programme (see Product liability regime changes on the horizon? here) and issued its Initial Scoping Questionnaire with a deadline for responses of 31 December 2025 (see Product Liability reform: Law Commission’s Initial Scoping Questionnaire now available here). 

The Terms of Reference provide more detail on the scope and focus of the review than has been available from information about the Commission’s remit and within the Initial Scoping Questionnaire.

Additional points include:

• Expanding on why the current definitions of “product”, “defect”, and “damage” may need to be reformed.
• Information on why the current product liability regime “long-stop” liability period of ten years, and the “state of the art” defence, may need to be amended.
• Giving examples of why AI and emerging technologies may create difficulties for Claimants to bring successful product liability claims, raising issues of opacity, autonomy and latency.
• Including a new issue for consideration - whether the Consumer Protection Act 1987’s definition of “producer”, and the range of economic operators who may be held liable under the Act, should be updated.
• Specifying that the Law Commission will work closely with the Department for Business and Trade, and the Department of Science, Innovation and Technology, in its review.
• Acknowledging that the current product liability regime is of concern to various stakeholders and not just potential Claimants.  Specific mention is made of insurers, who need to be able to price emerging technology risks.

The Terms of Reference note that the EU product liability regime was updated at the end of last year, including amendments regarding emerging technologies and AI, presumptions of liability, measures for disclosure of evidence, and limitation changes in respect of latent damage.  The EU’s progression in this regard is clearly an agenda item for the Law Commission, which has echoed areas the EU has already factored into its reforms.

The Law Commission also explains that it will consult with stakeholders in Scotland and Northern Ireland to record any relevant differences in the laws of each country, even though its review relates to England and Wales.

However, missing from the Terms of Reference (or indeed anywhere in the details about this project) is the information that Northern Ireland will transpose the new EU Product Liability Directive (2024/2853) by 9 December 2026 – see our article here).  This raises considerations not just for stakeholders with interests in that market, but on a wider basis about different regimes potentially applying in different parts of the United Kingdom if the Law Commission recommends reforms that diverge from those enacted by the EU. 

When completing the Initial Scoping Questionnaire stakeholders will wish to consider whether these EU (and thus Northern Ireland) reforms are appropriate for England and Wales, or whether a law that avoids the EU’s tilt towards consumer interests would better preserve the fair balance that has held for nearly forty years under the Consumer Protection Act 1987.