UK Trends and Developments Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
cause of action has accrued by the end of the ten- year period. The longstop runs from the product’s “relevant time” as defined in the CPA (commonly described as when the producer first put the product into circulation). In practical terms, that starting point can sometimes be months or even years before a claimant has any inter - action with the product, particularly where products spend time in distribution chains, storage, or clinical supply systems before being used, implanted, or pre - scribed. It is sometimes suggested that a claimant who is time- barred under the CPA can simply sue in negligence or contract instead. In reality, those routes may be unavailable (no contractual nexus), procedurally dif - ficult (identifying a duty and breach years later), or evidentially heavier (proving fault rather than defect). The result is that the ten-year CPA longstop can func - tion as a substantive denial of redress for claimants with latent injuries. Each year, claimant lawyers are forced to turn away hundreds – if not thousands – of otherwise meritorious cases because the strict ten-year longstop limitation period has expired. The consequence is that many individuals with genuine injuries are denied access to justice, not because their claims lack substance, but because time has run out before the harm could reasonably be discovered. In practice, this provision does little to protect consumers and operates instead to confer certainty and insulation from liability on phar - maceutical manufacturers. The EU’s New Product Liability Directive: extending the longstop to 25 years for latent personal injury The EU’s New PLD (Directive (EU) 2024/2853, pub - lished in November 2024 and in force from December 2024) modernises the 1985 regime for defective prod - ucts. Among other claimant-friendly changes (includ - ing a broader definition of “product”, wider heads of “damage”, and procedural measures to ease proof), it addresses a longstanding criticism of the old frame - work: that a ten-year extinction period can defeat claims where harm is slow to emerge.
In outline, the New PLD retains a relative limitation period (commonly three years from the date the claim - ant became aware, or should have become aware, of the damage, defect and identity of the liable person) but modifies the absolute backstop. It provides for a general longstop of ten years from the product being placed on the market, and, critically, an extended longstop of 25 years where a claimant is unable to bring proceedings within the ten-year period because the damage concerns latent personal injury (that is, injury with symptoms that emerge only after a pro - longed period). EU member states must transpose the New PLD by December 2026. Although Great Britain is not required to follow EU directives post-Brexit, the New PLD mat - ters to UK practitioners and policymakers for the fol - lowing three reasons: • Many manufacturers and supply chains are cross- border. • UK claimants may have parallel EU exposures in some cases. • The New PLD provides a contemporary benchmark for what a “fair” limitation framework looks like for modern products, including those associated with long-latency harm. The Law Commission has commenced a review of the product liability regime in Part I of the CPA with a view to assessing whether it remains fit for purpose, particularly in the context of digital products, complex supply chains and emerging technologies. A formal public consultation is planned (currently anticipated for the second half of 2026). While the review has a wide remit, the limitation architecture, and especially the ten-year longstop, has become an unavoidable focal point because it can prevent otherwise arguable claims from ever reaching a merits determination. Why the ten-year longstop is increasingly seen as unfair The policy rationale for an absolute longstop is famil - iar: legal certainty for producers and insurers; finality; and recognition that defending very old claims is hard - er as evidence degrades. Those aims have weight. Reform momentum in the UK: the Law Commission’s product liability review
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