Group Proceedings in Scotland allow for two or more claimants, who have the same or similar case, to raise their actions jointly in the Court of Session against the same defender. Unlike before, where each claimant was required to bring their own case individually, this new procedure makes for a more streamlined and less time-consuming approach and removes any risk of similar individual cases being determined differently.
Although the introduction of this procedure has revolutionised the Scottish legal system, it is not in itself revolutionary. The procedure is similar to that of “Class Actions” which has been made available to claimants in other jurisdictions for some time. Indeed, in the US, class actions were first introduced some 200 years ago, making Scotland very late to the party.
Having said that, the Scottish courts have already seen a variety of Group Proceeding cases ranging from injuries suffered from poor working conditions (The James Finlay (Kenya) Limited Group Proceedings), sexual abuse (The Celtic PLC Group Proceedings) and NOx Emissions (The VW Group NOx Emissions Group Proceedings). This showcases the spectrum of cases which may be brought under Group Proceedings.
In Scotland, the procedure currently operates on an “opt-in” basis, meaning that claimants who have the same or similar cases and who wish to become involved in the group action must actively come forward to confirm same. Every claimant who opts-in will be added to what is known as the Group Register. However, the action will only be raised in the name of the Representative Party, who is effectively the leader of the group.
To bring Group Proceedings, two applications must be made at the outset: one which seeks to appoint the Representative Party and the other which seeks permission from the court to progress by way of Group Proceedings. If both applications are granted, the case will be “case-managed” by a judge going forward.
In relation to the first application, the court will consider whether the suggested Representative Party is a suitable person. In doing so, the court will consider various factors including the applicant’s own interest in the proceedings and their special abilities and relevant expertise. So far, the Scottish courts have rejected arguments that cases of complexity require the candidate to be a person with expertise in group litigation or in the subject matter of that litigation. Indeed, in the most recent cases the Representative Party has tended to be a member of the group bringing the claims.
As for the second application, the court will consider, amongst other factors, whether the claimants have a prima facie case and whether the proposed proceedings have any real prospects of success. If this criterion is not satisfied, the courts may refuse permission to bring Group Proceedings.
The courts have provided some useful guidance when dealing with these questions. In terms of whether there is a prima facie case, the court stated in the Jaguar Land Rover Automotive Plc Group Proceedings (JLR) that:
Counsel for the defenders made various criticisms of the drafting of the summons, including that the pleadings were not of the necessary specificity required for fraud.
At this stage in the proceedings, the court does not require the pleadings to be fully developed. All that is required is a prima facie case. […] Whether that prima facie case is robust enough to survive debate after both parties have fully pled their cases is not a matter for this stage of proceedings.
Further, in Mackay v Nissan 2024 S.L.T. 827 it was held that:
at this stage in the process, the existence of a prima facie case in this particular context requires no more than the appearance of a serious question or questions to be tried. It does not call for the application of tests of relevancy or specification which would (and will) apply once the pleadings are finally settled.
As for whether the action has any real prospects of success, the courts held in JLR that:
To require evidence to be lodged at the permission stage and to require legal argument on these issues, would be to turn this preliminary certification stage into a full hearing on the substance of the case. All that is required at this stage is that the averments demonstrate a real prospect of success. The test is not to be interpreted as creating an insurmountable barrier which would prevent what might appear to be a weak case from being fully argued in due course: there requires to be a prospect which is less than probable success, but which is real and has substance.
This is helpful guidance which should be bore in mind by both parties when dealing with applications to bring Group Proceedings. However, points of law in Scotland are ultimately settled in the Inner House of the Court of Session and it remains to be seen whether any of these first instance decisions will be subject to appeal. Undoubtedly, more guidance will follow with the more actions which are brought.
The introduction of Group Proceedings is an exciting time for the Scottish legal system, courts, solicitors and claimants alike. Although it appears like Scotland may have some catching up to do, we can certainly benefit from learning from other jurisdictions’ past mistakes as we try and navigate and path our own way forward in Group Proceedings.
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