Yes, a formal mechanism called “Group Proceedings” was introduced in Scotland on 31 July 2020 when Part 4 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 entered into force. The mechanism allows a group of parties to bring joint proceedings if their claims raise issues of either fact or law which are the same as, similar, or related to one another.

In terms of a description of the mechanism, group actions must be brought by an authorised representative party on behalf of the group. The court procedure is largely judge-managed with the designated judge having discretion as to how best to progress the action to a final hearing. It is currently an opt-in procedure only and members of the group must actively opt-in to the group action, to participate in it. The normal rules on costs also apply. Expenses therefore usually follow success except in personal injury and fatal claims where the court will not make an award of costs against an unsuccessful pursuer unless the litigation has been conducted in an inappropriate manner – eg fraudulently.

The relevant statute allowing for Group Proceedings in Scotland already caters for a transition to a US-style opt-out regime without further primary legislation being required. The Court of Session in Scotland is empowered to make secondary legislation to switch to an opt-out regime in due course.

Claimants may be any natural or legal person.

Group proceedings must be commenced in the Court of Session. They cannot be brought in the Sheriff Courts (County Court equivalent). All hearings are dealt with by the same judge, other than in exceptional circumstances.

Group proceedings in Scotland are not limited to a particular type of conduct or cause of action.

There are no restrictions on the type of civil claim which may be brought using group procedure.

The mechanism for Group Proceedings was only introduced in 2020. Four actions have been brought using the procedure so far, albeit we are anticipating that the procedure will be more commonly adopted in next two to three years.

To date group procedure has been used to litigate ESG related claims and claims alleging breaches of consumer rights and personal injury law (historic abuse). Other areas of emerging business risk that may be the future focus of group actions in Scotland include claims against companies in respect of breaches of data privacy law; claims that companies have produced and distributed allegedly defective products; greenwashing claims for breaches of section 90 and 90A of FSMA and  personal injury claims against governing bodies in sport. Trends in class action litigation in other jurisdictions such as the USA and England and Wales will also be relevant in Scotland as pursuer firms will seek to replicate those claims in Scotland where grounds exist to do so.

Scotland is currently an “opt-in” jurisdiction. However, the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 allows an “opt-out” procedure to be adopted in future regulations too, although this is not currently under consideration.

Group Proceedings are started by the preparation and service upon the defender of:

• a Summons (the initiating document setting out the claim),
• a Group Register identifying the claimants,
• an application to the court for permission to bring Group Proceedings; and
• an application to be the representative party (typically brought at the same time as the application for permission to bring Group Proceedings).

Service of the Group Register on the defender stops the clock ticking in terms of timebar. However, certification of the action as a group action and certification of the representative party by the court are required to formally commence the action at court.

There are no restrictions on the types of remedies available to claimants in Group Proceedings. To date damages has been the principal remedy sought.

No.

Jury trials are not available in Group Proceedings in Scotland.

Damages are calculated on a compensatory basis with the aim of putting the claimant back into the position he / she would have been had the wrongful act or breach of contract which is the subject of the proceedings not been committed.

No. There are no jurisdictional obstacles specific to Group Proceedings in Scotland. The Scottish courts will apply the same rules as in regular proceedings.

In the leading case dealing with Group Proceedings, the Inner House (Scotland’s appeal court) in the case of Hugh Hall Campbell KC (as representative party of the James Finlay (Kenya) Limited Tea Estate Workers Group Proceedings case) v James Finlay (Kenya) Limited recently held that the Scottish Courts would decide issues of foreign law in Group Proceedings, as long as the court was satisfied that it had jurisdiction to hear the claims. The approach to this in Scotland is for experts in the relevant foreign law to assist the Scottish court in making its judgment.

In the James Finlay case, the Inner House heard arguments relating to jurisdiction and forum non conveniens, deciding that whilst the Scottish Courts had jurisdiction, the workers claims were more appropriately determined in Kenya owing, in part, to the need to apply Kenyan law in relation to the applicable non-fault compensation scheme which applies to the injury claims brought by the workers

No, providing the court accepts jurisdiction there are no limits on the nationality or domicile of claimants in Group Proceedings in Scotland.

No, there are currently no international laws which impact the procedural conduct of Scottish Group Proceedings.

The rules require that the representative party must “consult with” group members on the terms of any proposed settlement. However, in practice there is likely to be a contract in place between group members and the representative party which details how settlement decisions are to be taken.

No, the rules do not provide for judicial oversight for settlements of Group Proceedings in Scotland. However, the court must be notified of any settlement between parties and any live court proceedings must be appropriately disposed of.

Regulatory enforcement findings can be used as a basis to start Group Proceedings. However, the court must still establish the facts relevant to determining civil liability.

Yes, Group Proceedings have been brought in Scotland for ESG matters – more particularly diesel emissions claims. These actions are believed to be framed as actions relating to breach of delictual (tortious) duties as well as breach of contract and statute. There are currently two live sets of Group Proceedings in relation to diesel emissions claims, but further claims are known to be advancing at a pre-litigation stage.

Yes, litigation funding of Group Proceedings is permitted in Scotland. However, the party who obtains the funding must disclose the identity of the funder and any intermediary and the nature of the assistance being provided.

Yes, funding through a success fee arrangement, be it a speculative fee agreement or a damages-based agreement with a solicitor, is permitted in Scotland (subject to certain caps).

Yes. Whilst there are no specific rules on expenses for Group Proceedings the normal rule that “expenses follow success” will apply. The court will therefore usually make an award of expenses (costs) against the unsuccessful party at the end of the litigation, except in personal injury and fatal claims where qualified one-way cost-shifting applies. In such cases an award of expenses is not made against an unsuccessful pursuer unless the litigation has been conducted by them in an inappropriate manner – eg fraudulently.

The Group Proceedings mechanism was only introduced in 2020 and there are no current proposals to reform it. Scottish Ministers have committed to review the operation of the Group Proceedings rules and their impact on access to justice and the administration of Scottish courts, after 5 years.