Multi-party actions were first considered by the Scottish Law Commission (SLC) in a report, Multi-Party Actions: Court Proceedings and Funding, published in 1994. As part of that report, the SLC examined multi-party actions in other jurisdictions and made suggestions for the implementation of group proceedings in Scotland. 15 years later, in 2009, further recommendations were made on the introduction of group proceedings in a Report of the Scottish Civil Courts Review.
However it was not until 31 July 2020 that group proceedings were formally introduced in Scotland by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the “2018 Act”). The 2018 Act implemented many of the recommendations of the Report of the Scottish Civil Courts Review.
In the lead-up to the 2018 Act coming into force, the Scottish Civil Justice Council (SCJC) Working Group published a consultation paper in April 2020, where it made proposals for the procedural regime to regulate group proceedings in Scotland. It considered existing procedures in the Court of Session in Scotland, equivalent procedures in other jurisdictions (including England and Wales, Australia, Ontario, British Columbia and the USA) and suggestions made by the Scottish Law Commission in their report on multi-party actions. The SCJC proposed the rules that became Chapter 26A of the Rules of the Court of Session (the “Rules”).
These reforms to Scottish procedure sought to modernise civil court procedure in Scotland by encouraging the expeditious progress of group proceedings and by making the most efficient use of time spent in court. The Rules place emphasis on judicial case management and provide the court with the power to tailor the procedure to the particular circumstances and complexity of the proceedings. In its consultation paper of April 2020, the SCJC Working Group set out its intention to produce “straightforward rules encompassing only the essential procedural elements required to enable group proceedings to operate efficiently in the court.”
The reforms sought to provide greater procedural efficiency in the Scottish courts for cases involving multiple pursuers with the same or similar claim. Prior to the introduction of the 2018 Act, pursuers were required to raise individual actions despite having the same or similar causes of action against the same defender. Those cases would then be case-managed together. An example of this is the Transvaginal Mesh litigation, which involved hundreds of women raising individual actions that were then case-managed together by the court. By comparison, following the introduction of group proceedings in Scotland, the Volkswagen NOx Emissions litigation was raised, which allowed thousands of pursuers with the same type of claim to raise one group action against the same defenders.
As can be seen from the consultation process outlined in 1.1 History and Policy Drivers of the Legislative Regime, the introduction of group proceedings in Scotland was informed by the regimes in other countries, including the USA, Canada and Australia.
The Scottish regime requires that group proceedings be brought by a representative party, who is authorised by the court to do so. The court must also grant permission for the case to proceed as a group proceeding. The process and requirements of this initial stage of proceedings are set out in 4.2 Overview of Procedure.
This is similar to the requirement for court “certification” of a class in the USA, or for the “authorisation” of a class in Canada, but distinct from the Australian model where such certification is not required.
Scottish legislation provides for both “opt-in” and “opt-out” group proceedings, but, as detailed more in later sections, only “opt-in” proceedings have been implemented thus far.
The EU collective redress regime (Directive 2020/1828) will not be implemented in the UK, given the UK’s departure from the EU.
As noted, until recently there was no specific group proceedings mechanism in Scotland; instead, the courts used existing case management powers to manage groups of cases together. Whilst this was more efficient and expedient than managing such cases individually, cases were ultimately still determined on individual bases – the decision in one claim did not automatically bind the others.
This changed when the 2018 Act came into force on 31 July 2020, introducing new rules to allow group proceedings to operate in Scotland. Chapter 26A of the Court of Session Rules now governs group procedure. These rules were also introduced on 31 July 2020, when the Court of Session Rules were amended by the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020.
At present, the 2018 Act applies to all areas of civil litigation in Scotland. So far, permission to bring group proceedings has been granted in cases related to personal injury, historic abuse and commercial litigation. Group proceedings can only be brought in the Court of Session.
It is expected that group proceedings will be most common for claims akin to those which have proven successful in other jurisdictions – for example, regarding:
At the time of writing, the authors understand that the Scottish Civil Justice Council is considering an extension of the Rules, to allow pursuers to bring group judicial review proceedings.
The current framework for group proceedings in Scotland provides a mechanism for “opt-in” proceedings only. There is currently no mechanism for “opt-out” proceedings; however, it is expected that these may be introduced in due course. The UK Competition Appeal Tribunal (CAT) has jurisdiction in Scotland, which allows claims to be brought on an “opt-out” basis, meaning proceedings carried out under the CAT could apply to Scottish class members domiciled within the UK on the relevant date specified in the Collective Proceedings Order, unless they specifically opt out.
In Scotland, group proceedings are defined in Court of Session Practice Note Number 2 of 2020, as: “group proceedings (also known as multi-party or class actions in other jurisdictions), in which there are two or more persons (a “group”) each with separate claims which raise issues (whether of fact or law) which are the same as, or similar or related to, each other and which may be the subject of civil proceedings.”
Given that the rules are still in their infancy in Scotland, there is limited case law to reflect the interpretation of this and what might constitute similar or related issues. One such decision is discussed in more detail in 4.2 Overview of Procedure.
The 2018 Act came into force on 31 July 2020, bringing in new rules which enabled pursuers to bring group proceedings in Scotland for the first time. Under the Rules, two or more people with separate claims which raise the same, similar or related issues of law or fact can apply to bring group proceedings. There is no maximum number of claims in the group which can be brought under this procedure. Group proceedings must be brought in the Court of Session, Scotland’s supreme civil court.
A further mechanism for Scottish claimants to bring group proceedings is to apply for a “collective proceedings order” before the UK Competition Appeal Tribunal. Such claims may be brought on either an “opt in” or “opt out” basis. The Tribunal hears cases related to competition or economic regulatory issues and has jurisdiction over the UK, and therefore over Scotland. This mechanism is outside the scope of this chapter, which will focus on Scottish group procedure.
Under the Rules, group proceedings are brought with the permission of the court by a representative party on behalf of the group. The representative party must apply to the court requesting permission to be appointed to represent the group. A separate application is required for permission to bring the group proceedings. These applications can be made simultaneously, or the application for permission to bring group proceedings can be made once the representative party has been appointed. The claim is considered “certified” as a group claim upon the completion of these two steps.
The Permission Stage
The court will grant permission for claims to be brought as group proceedings where:
The court may refuse permission to bring group proceedings on the basis that:
In Hugh Hall Campbell QC v James Finlay (Kenya) Limited  CSIH 29, the court considered the test for the same, similar or related issues of fact or law. This case concerned an action brought on behalf of workers at a Kenyan tea plantation for musculoskeletal injuries alleged to be caused by negligent breaches of duty by their employer, James Finlay (Kenya) Limited. On appeal, the Inner House of the Court of Session held that the first instance judge had been correct in finding that these claims met the test for sufficient similarity. The common issues of fact were the nature of the employers’ working practices, and the common issue of law was whether such practices amounted to negligence. A finding on these issues would dispose of all the claims in the group, leaving only individual issues of causation remaining to be determined.
The Group Register
The group register should contain the names of all group members. The group register is to be served upon the defenders in accordance with Rule 26A.5(8) or Rule 26A.9(4), which deal with applications to be appointed as representative party and applications to bring group proceedings, respectively. The service of the group register on the defenders in accordance with either of these rules constitutes the commencement of proceedings in respect of those persons listed in the served group register. The names of additional group members can be added to the group register throughout the proceedings.
The Role of the Representative Party
It is the responsibility of the representative party (or their agent) to maintain the group register. There may be more than one firm of solicitors acting on behalf of group members in the proceedings. In this case, a “lead agent” will be designated – it is expected by the court that the lead agent will act for the representative party. The representative party has obligations to all group members; the lead agent should therefore work with other agents acting for group members in the case to ensure that these obligations are fulfilled.
Once permission to bring group proceedings has been granted, the procedure for the management of the case is similar to that in place for commercial actions in Scotland. The similarities can be seen with the stated preference for abbreviated pleadings and the extensive case management powers exercisable by the judge. This flexibility will be particularly suited to group proceedings and the additional complexities which they bring.
Proceedings are brought by a representative party on behalf of the group. A representative party may be a member of the group with a claim in the proceedings, though this is not a requirement. Group proceedings may therefore be brought by, for instance, consumer associations, representative bodies and environmental groups that do not directly have a claim in the proceedings.
The representative parties appointed by the court to the date of writing include individual members of the group (see the VW Group NOx Group Proceedings (GP10/20)), and a retired member of the Faculty of Advocates (see Hugh Hall Campbell v James Finlay (Kenya) Limited  CSIH 29). It has been held that the representative party cannot be the agents acting on behalf of the representative party (Hugh Hall Campbell v James Finlay (Kenya) Limited  CSIH 29).
To be appointed, a party must apply to the court for permission to be the representative party. The court will consider certain factors, such as:
It is important that there are no conflicts of interest and that the proposed representative party is entirely independent from the defender.
Once appointed, the representative party acts by bringing claims on behalf of the members of the group.
The 2018 Act provided for the introduction of both “opt-in” and “opt-out” group proceedings. However, to date, the Rules have made provision only for “opt-in” procedures, whereby those persons wishing to be part of the group must provide notice to the representative party of their consent to being part of the proceedings. Upon receipt of such notice, the name of the individuals may be added to the group register, from which point they become part of the group proceedings.
If permission to bring the group proceedings is granted (see 4.2 Overview of Procedure), the court will make an order defining the group and the issues which are the same as (or similar or related to) each other issue raised by the claims.
The SCJC has committed to considering the introduction of rules to allow for an “opt-out” procedure. To date, no timescale for consideration or introduction of such rules has been given.
At the time of writing, the only “opt-out” mechanism available remains the UK Competition Appeal Tribunal mechanism outlined briefly in 4.1 Mechanisms for Bringing Collective Redress/Class Actions.
Opting in/Withdrawing From Proceedings
The Rules make provision for additional members to be added to the group, or for existing members of the group to withdraw from the proceedings, after the permission stage.
A member joins or withdraws from the group by providing notice to the representative party. The representative party should, as soon as possible thereafter, and no later than 21 days following receipt of the notice, lodge with the court and serve on the defender a revised group register. Evidence of service should be provided to the court within 14 days of the date of service. The representative party should also inform all group members of the change in membership.
In respect of new group members joined to the proceedings, the proceedings are deemed to commence upon the lodging with the court of the revised group register, following the lodging and service of the group register on the defenders in accordance with the above procedure.
Late Notice to Opt in
The procedure for adding or withdrawing members varies slightly if a proof (trial) has already been set down. In this scenario, the representative party must make an application by motion to add the potential group member to the group. The application will come before the judge on the first available day. The judge will make an order providing for the intimation and service of the application on the defender, and on anyone else that the judge deems necessary.
The order will also provide for any advertisement that the judge considers appropriate, and for answers to be lodged by the defenders. This order will normally provide for a timetable of:
This is not a fixed timetable however, and is ultimately at the discretion of the judge.
The judge may only grant the motion once the defender has had the opportunity to be heard, on cause shown, and on such conditions with regard to expenses as the judge deems appropriate.
Late Notice to Withdraw
Different rules apply if a group member seeks to withdraw from proceedings after any proof has commenced, or if such withdrawal would result in fewer than two group members remaining in the proceedings. In these circumstances, the representative party must make an application by motion.
Similar to the rules for parties providing late notice to join proceedings, the judge will make an order:
Again, the order will normally provide for a timetable of seven, seven and 14 days for these respective stages, though this may be varied at the discretion of the judge.
The judge may grant the motion after the defender has had the opportunity to be heard, and upon setting out such conditions in respect of expenses as the court deems appropriate.
The court has wide case management powers in Scottish group proceedings. The procedure is similar to that for commercial actions. The Rules are designed to allow for closer case management for group proceedings than would typically occur in other proceedings, and under the direct control of the judge. This is to allow the judge to respond to the anticipated complexities of group proceedings. For instance, there is a broad power granted to the court under Part 9 of the Rules, which sets out that the judge has the power to make any such order as they deem “necessary to secure the fair and efficient determination of the proceedings”. The judge may order, for example, that the case should proceed by way of test cases or lead claimants.
Other than in exceptional circumstances, the same judge will deal with all stages throughout the proceedings.
The Court of Session makes special provision for cases of a commercial or business nature, which are dealt with by specialist commercial judges nominated by the Lord President. Group proceedings of a commercial nature will be heard by one of the specialist commercial judges.
The length of proceedings will be highly dependent on the nature and complexity of the claims. The court has wide powers to case-manage the proceedings and the rules are written with a view to cases progressing expeditiously.
Upon granting permission for group proceedings to be brought, the judge will make an order setting out the period of time during which claims may be brought by persons in the group proceedings.
After the defences in the proceedings have been lodged with the court, a preliminary hearing should be held within 14 days. At the conclusion of the preliminary hearing, the judge must fix a date for a case management hearing. During the case management hearing, the judge may exercise a wide range of powers to set timetables for, for example, the submission of expert reports, or for the examination and cross-examination of experts. At the case management hearing the judge may also fix a date for a proof (trial), or for a further case management hearing if deemed appropriate.
The Rules provide for a great deal of discretion exercisable by the court in respect of the timetable of group proceedings. However, it remains open to parties to seek to sist (pause) an action or intimate a motion to vary the timetable during a court action.
Standstill agreements were made permissible in Scotland by Section 13 of the Prescription (Scotland) Act 2018. This means that the need for formal proceedings can be delayed for a maximum period of a year if the parties to the dispute sign a standstill agreement. The prescriptive period can only be extended by agreement:
Costs in Scottish procedure are referred to as “expenses”. Generally, the “loser pays” principle applies.
The Court will make expenses orders throughout the course of the litigation. Following a hearing on a particular application or issue, the court may either:
This means that they will be considered at the conclusion of the overall proceedings as costs in the case.
At the conclusion of the litigation, the court will normally make an order awarding expenses to the winning party. If awards of expenses have already been made in respect of particular stages of the proceedings, these will be carved out of the overall expenses.
As an exception to the “loser pays” principle, and in respect of personal injury claims and claims for death from personal injuries only, qualified one-way costs shifting (QOCS) is available. The principle of this regime is that, should the pursuer be unsuccessful in their claim, they will not be liable for the costs of the other party provided that they have conducted the proceedings in an appropriate manner.
At the time of writing, there are no specific procedural rules on how expenses will be dealt with in group actions – it is likely this will develop as further cases proceed under the new legislation.
Success Fee Agreements
Alongside the introduction of group claims, the 2018 Act introduced major reforms to civil litigation funding in Scotland, permitting the use of success fee agreements.
These reforms mean that a pursuer can pursue a claim on a “no win, no fee” basis, paying the solicitor a fee upon success only. It is expected that the majority of group actions will proceed on this basis, particularly consumer actions. Scottish solicitors can now work on a damages-based agreement, whereby their fee is calculated as a percentage of the damages recovered. Another option is a conditional fee agreement, whereby the solicitor is paid an uplift on the expenses charged on success. This could be an increase of 100% of basic charges on success or charges at a higher rate. In the event of success, part of a solicitor’s expenses will be recovered from the other party, and the rest will be deducted from any compensation awarded to the pursuer.
The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (Success Fee Agreements) Regulations 2020 place certain restrictions on success fee arrangements. The success fees payable to solicitors are capped at:
Personal injury cases are subject to a sliding cap, as follows:
The 2018 Act provides for third-party funding by litigation funders. Section 10 of the Act, which is not yet in force, places certain requirements on such funding arrangements, namely that:
When these restrictions come into force, parties in receipt of funding will be obliged to comply with the above disclosure obligations. The court may make an award of expenses against third-party funders who have a financial interest in the result of the case; however, this will not apply where the funding has been provided under a success fee agreement or where the funder is a trade union or other body representing workers’ interests.
There is no standard process for “discovery at-large” in Scotland.
At the outset of the proceedings, the party seeking permission to bring proceedings must produce all relevant documents in their possession which are necessary for the court to determine whether or not to give permission. Further, documents relied upon in the parties’ pleadings must be lodged with the court.
At the preliminary hearing, the court may make orders for the disclosure of the identity of witnesses, and of the existence and nature of documents relevant to the proceedings. The court may also make an order for a party to recover documents, either generally or specifically.
The remedies available in group proceedings are the same as those which a pursuer may seek in an individual claim, including financial compensation, interdicts (similar to injunctions in other jurisdictions) and declarators, whereby the court makes a finding in favour of the successful party.
Given the nature of group proceedings and the types of claims which the Rules lend themselves to – for example, consumer actions – it is expected that most claims will be for damages in respect of financial losses or solatium (damages for pain and suffering).
The parties are encouraged to explore extrajudicial settlement and will be expected to report to the judge at the case management hearing any steps taken in furtherance of this, and on the likelihood of a settlement being reached. The judge also has the power to order that the parties should meet to explore the possibility of extrajudicial settlement.
Alternative dispute resolution (ADR) methods, including mediation and arbitration, are available as a means of resolving disputes in Scotland. Parties to a dispute need to agree to ADR. The main methods are:
Parties may also seek to use an ombudsman or commissioner as a means to resolve a complaint, in order to avoid bringing a claim to court.
The court’s determination of the case in group procedures will extend only to individuals who have opted into the group proceedings action. A successful outcome in the group proceedings could not be relied upon by anyone who has not joined the group. Equally, non-group members would not be bound to accept a settlement from the defender, and they could raise their own claim should they choose to do so.
Any judgment issued by a Scottish court is enforceable in Scotland and there are mechanisms for enforcement proceedings should they be required. These can begin as soon as an extract decree (a copy of the judgment signed by the court clerk providing authority for enforcement) is issued.
Group procedure in Scotland is still in its infancy; the first Scottish group actions are currently being heard, and it is expected that the procedures will evolve as these cases progress and new ones are raised. The Court of Session has issued a Practice Note clarifying certain elements of group proceedings.
In a policy note issued in 2020, the Scottish Civil Justice Council committed to considering the introduction of further rules to provide for “opt-out” proceedings in Scotland. No timetable was given for the consideration or introduction of such rules; however, it was noted that the use and development in practice of the rules on “opt-in” proceedings will be beneficial to, and inform, the future drafting of rules on “opt-out” procedures, which are anticipated to be more complex proceedings.
Furthermore, the Rules make provision for the application of group proceedings to all areas of civil litigation; at the time of writing, the authors understand that the Scottish Civil Justice Council is considering how the Rules may be extended to apply to judicial review proceedings.
The Rules Under Review
Whilst the group proceedings regime is expected to evolve with practical application to progressing cases, a mechanism for review is also provided for in the legislation. The 2018 Act provides that two reports shall be prepared and laid out before the Scottish Parliament, to address the operation of the 2018 Act and the effects of parts of the Act on access to justice and the administration of courts in Scotland.
The first report shall deal with Parts 1–3 of the 2018 Act, namely the provisions on success fee agreements, expenses in civil litigation and auditors of the court, and is to be prepared after a five-year period following the date of royal assent to the 2018 Act.
The second report shall deal with the provisions on group proceedings contained within Part 4 of the 2018 Act. This report is to be prepared after a five-year period following the coming into force of Section 21(1) of the first act of sederunt. Within these reports, the Scottish Ministers must publish a statement setting out any proposals intended to be brought forward to modify the provisions or, alternatively, a statement setting out the reasons for not bringing forward such proposals.
At the time of writing, the report on Parts 1–3 is due, but has not yet been published.
As discussed previously, group procedure is new to Scotland, and the rules to its establishment came about by virtue of substantial reforms and attempts at modernisation of civil court procedures; an ongoing priority for the SCJC. The background to the establishment of the regime is highlighted in 1.1 History and Policy Drivers of the Legislative Regime; notably, whilst drafting the rules there was an emphasis on “straightforward procedures” and “efficiency”.
There have, however, been initial difficulties as the first group proceedings make their way through court, and it remains to be seen whether the rules will change over time, whether reform will be required or whether further Practice Notes will suffice. The 2018 Act calls for a scheduled review of the Rules after the end of the five-year period.
As identified in 4.9 Funding and Costs, the 2018 Act provides for third-party funding by litigation funders. Section 10 is not yet in force and sets out certain key conditions to such funding:
Once in force, these provisions will require that the funding must be disclosed to the court, and the court will have the option of making an award of expenses against the funder if it can be shown that they have a financial interest in the outcome of the action. However, this will not apply where the assistance is provided under a success fee agreement, or if the assistance is provided by a trade union or similar body that represents the interests of workers.
At the time of writing, the SCJC is considering an extension of the Rules, applying group proceedings procedure to judicial reviews, and the development of rules to enable “opt-out” proceedings as per the Act. These come as part of the comprehensive re-writing of Scottish civil court rules.
Despite Scotland voting to remain, the UK left the EU and the transition period following Brexit ended on 31 December 2020, in line with the European Union (Withdrawal) Act 2018. The impact of Brexit on Scots law is a vast, complex area, and outside the scope of this chapter. However, two important points are raised.
Jurisdiction, Recognition and Enforcement of Judgments
In civil and commercial matters, jurisdiction and recognition and enforcement of judgments is of significant importance. For transitional cases ongoing in Scotland at the end of the transition period, legislation provided that courts in Scotland would continue to apply the existing jurisdiction and recognition and enforcement of judgments rules (the Lugano Convention 2007). For new cases, after the end of the transition period, the rules governing jurisdiction in all cross-border disputes, including those involving parties domiciled in the EU (or in other states party to the Lugano Convention 2007), would be governed by the domestic law of each UK jurisdiction. In Scotland, the rules are found in Part III and Schedules 8 and 9 of the Civil Jurisdiction and Judgments Act 1982.
On 8 April 2020, the government applied for the UK to rejoin the Lugano Convention as an independent contracting state, but so far the EU’s consent has not been forthcoming. This means that there is essentially no formal treaty for reciprocated enforcement of Scottish judgments across the EU.
This could potentially impact on Scottish group proceedings with a cross-border element and defenders based in EU countries.
Service of Documents
Brexit meant Regulation (EC) No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters (service of documents) was no longer applicable between the UK and the EU member states. The Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil and commercial matters became applicable law between the UK and those EU member states which are part of the convention.
The most formal method is through the central authority (Article 2). Service through the central authority requires the sender to transmit the summons and complaint, and to complete a service request form and a form summarising the documents to be served (Article 3).
The impact on Scottish group proceedings is that the process is lengthy due to the requirements for international service, which may have an impact on access to justice. This may need to be addressed by the Scottish legislators.
The introduction of group proceedings and success fee arrangements marks an important turning point with regards to access to justice in Scotland. The types of actions which the authors have seen raised as group proceedings in other jurisdictions – for instance, environmental and consumer group actions – would likely not be feasible to raise as individual claims. Without being able to enter into success fee agreements with their agents, most pursuers would not have the financial backing to do so. The group proceedings mechanism allows individuals to harness the power of the group, and to redress the imbalance between individual victims and defenders, who are often large organisations with far greater financial resources.
The introduction of the Rules brings Scotland in line with other jurisdictions which have operated such mechanisms for years, including Australia, the USA, Canada and, more recently, England and Wales.
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Group Proceedings in Scotland – Progress, Pitfalls and Possibilities
Since its introduction in 2020, and at the time of writing, only three group cases have been given permission of the court to proceed under the new group proceedings (or “class actions” equivalent) regime in Scotland. These initial cases have provided insights into the utility, interpretation and application of the new rules.
This article examines the cases so far and what can be learned from them, and concludes with the authors’ views on the progress, pitfalls and possibilities for group proceedings in Scotland.
The VW Group NOx Emissions Group Proceedings
This was the first case raised under the new rules. The case arose from the “dieselgate” scandal which broke in 2015. This Scottish group case was brought by those affected by the NOx emissions scandal involving Volkswagen (VW). The representative party was a member of the claimant group.
The case has now resolved by way of an out-of-court settlement. No reported decisions were made in the case, but it demonstrated the functional benefits of the new regime, with around 7,800 individual claims being advanced and resolved in the one group case.
James Finlay (Kenya) Ltd Group Proceedings
The second case raised under the new regime has provided all reported decisions so far in Scotland. The claim relates to alleged injuries caused to over 1,000 workers at a Kenyan tea plantation as a result of the working practices and conditions of their employer, a Scottish company. Permission to bring the proceedings was granted in February 2022.
The representative party
The opinion of Lord Weir dated 2 February 2022 ( CSOH 12) was the first reported decision in the case, following a hearing on the applications to appoint a representative party and for permission to bring group proceedings. Thompsons Solicitors, a law firm instructed on behalf of the group members, sought to be appointed as the representative party for the proceedings. The defenders opposed the application for permission to bring group proceedings, but did not oppose the application to appoint Thompsons as the representative party. The court, however, invited the applicant to make written submissions on the appropriateness of appointing it as the representative party. The applicant submitted – with reference to the Taylor Review on Expenses and Funding of Civil Litigation in Scotland, the Scottish Civil Courts Review (2009) and the position in Canada – that nothing precluded the applicant, as a firm of solicitors, from acting as the representative party.
The court noted that “neither the 2018 Act nor the Rules of Court define who may, or may not, be authorised to be a representative party in group proceedings”. Under the Rules of Court, the court is required to consider the suitability of a proposed representative party by reference to a non-exhaustive list of matters, such as:
The court held that the question to be addressed was whether a firm of solicitors acting for the claimants in group proceedings can, at the same time, be the representative party to those proceedings. The court was concerned that this could pose a conflict of interest on the basis that decisions made by the firm of solicitors as a representative party “would be influenced by their financial interest as a member of the firm acting in those proceedings”. Furthermore, were it to appoint a firm of solicitors as representative party, the court was concerned that it could blur the distinction between a party and its advisers – the representative party would essentially be issuing instructions to itself.
Whilst the court stressed that it imputed “absolutely no impropriety on the part of the applicant in putting itself forward as a representative party”, it was not satisfied that the applicant was a suitable party to be appointed as the representative party. A retired advocate was subsequently appointed to act as the representative party and the case was granted permission to proceed as a group.
The defender’s appeal to the Inner House against permission to proceed
In an appeal against the court’s decision to grant permission for the case to proceed as a group, the defenders argued that the group members’ claims were not “the same as, or similar or related to, each other.”
In the opinion of the court dated 27 May 2022 ( CSIH 29), it is noted that the application narrated:
The Lord Ordinary held that “the group’s averments adequately identified issues arising from common working practices which allegedly gave rise to injury and the content of the respondents’ duty of care in that context”. However, the defenders submitted that whilst the 2018 Act allows groups of people who have claims of a “common underpinning” to raise group proceedings, it does not permit groups of people “with disparate claims to bring a group action simply because they were employed by the same person.”
The question for the Inner House was whether the Lord Ordinary was correct in his conclusion that the group’s averments identified issues of fact or law which were sufficiently similar or related to each other to justify the granting of permission for group proceedings. The Inner House stated that it had “no difficulty in finding that he was correct”, because the claims gave rise to the same issues of fact (ie, the nature of the defenders’ working practices) and the same issue of law (ie, whether the defenders’ working practices amounted to negligence). The defenders’ reclaiming motion (appeal) was accordingly refused.
Whilst there have been a limited number of group proceedings brought to date, this decision provides some helpful guidance on the potential utility and benefits of group proceedings. Although individual injuries suffered may vary or heads of loss differ amongst group members, one benefit of the group proceeding seems to be the ability to deal with the common issues of liability which underpin any individual losses.
The preliminary proof
A preliminary proof took place for the court’s consideration of the defenders’ pleas on the issues of jurisdiction and forum non conveniens (ie, that Scotland was not the most appropriate forum for the case). The court’s opinion was issued on 11 July 2023 ( CSOH 45).
The defenders’ position
The defenders submitted that the group members and the defenders were, by virtue of their employment contracts, contractually bound under Kenyan law. In terms of the Civil Jurisdiction and Judgments Act 1982, where parties have agreed that a court is to have jurisdiction, that court shall have jurisdiction, even if another court could have jurisdiction. For example, even though the Scottish courts could have jurisdiction on the basis of the defenders’ domicile, the defenders argued that because the group members’ employment contracts elected jurisdiction to be the Kenyan courts, jurisdiction was thus “prorogated” to Kenya.
Furthermore, the defenders argued that it was more suitable for the case to be heard in Kenya where the harm occurred, where the group members reside and where the tea estates are based. It was argued that the case “is likely to raise issues which require an understanding of Kenyan culture, behaviour and custom”, which are “outwith Scottish judicial knowledge”. All of the witnesses in the case were located in Kenya; the majority of the group members did not speak English, and many could not read or write, meaning that the taking of evidence would take substantially longer in Scotland. It was submitted that there was no connection between Scotland and the group members’ claims – the only connection was the fact that the defenders were registered in Scotland, but that had no relevance to the question of forum non conveniens.
Finally, the representative party had not demonstrated that the group members would be unable to obtain substantial justice in Kenya, and, even if the Scottish courts did have jurisdiction, the plea of forum non conveniens ought to be sustained.
The representative party’s position
The representative party submitted that the claims of the group members could be brought in Scotland on the basis of the defenders’ domicile. It was argued that the Court of Session was the only court in which the group members’ cases could be suitably tried for the interests of the parties and the ends of justice. There was no prospect of the group members obtaining substantial justice before the Kenyan courts.
The representative party invited the court to hold that “without the group proceedings progressing in Scotland, the group members would not obtain justice in Kenya” and submitted that the plea of forum non conveniens should be repelled.
Regarding jurisdiction, Lord Weir was not satisfied that the defenders had established that the claims of group members involved injuries or conditions which were covered by the Kenyan compensation regime and which must therefore be dealt with under it. It follows that the jurisdiction of the Scottish court was not excluded by agreement.
Regarding forum non conveniens, Lord Weir noted that, all other things being equal, Kenya would be the appropriate forum for disposal of the group members’ claims. However, there was a real risk that the group members would not obtain substantial justice were they to attempt to litigate their individual claims in Kenya, largely due to illiteracy, poverty and lack of representation. Much of the evidence about not just the resources of the group members but also the lack of available legal representation was not disputed.
The court was not satisfied that the Court of Session was forum non conveniens, and held that it did have jurisdiction.
The decision of the court has been appealed by the defenders, and at the time of writing is not yet available.
The case has certain similarities to the Mariana dam disaster claim (Municipio de Mariana versus BHP Group UK Ltd (formerly BHP Group Plc) and another) proceeding in the courts of England and Wales. The High Court initially refused to accept jurisdiction, but that decision was later overturned by the Court of Appeal. The case was brought in the UK by victims of the Mariana Dam environmental disaster in Brazil and remains ongoing.
It will be interesting to follow developments in the James Finlay (Kenya) Ltd Group Proceedings in Scotland, but, from the initial decision, the case demonstrates the potential for Scottish group proceedings to provide a mechanism for redress for individuals who have suffered loss or have been injured overseas, at the hands of Scottish legal entities.
The case also provides some insight into who can act in the representative party role in Scotland, and the approach of appointing a retired legal professional was also adopted in the third group case raised, the Celtic PLC Group Proceedings (detailed below). It is likely that further guidance on who is a suitable representative party will emerge through subsequent decisions from the courts.
The Celtic PLC Group Proceedings
The third case raised under the new rules in Scotland relates to claims arising from historic abuse. The usual three-year time limit for personal injury claims was removed for cases of historic childhood abuse (occurring when the claimant was under the age of 18) in Scotland in 2017 (by the Limitation (Childhood Abuse) (Scotland) Act 2017).
Whilst such cases are highly sensitive and individual to each pursuer, group proceedings were raised due to the similarities in the abuse suffered. In particular, all of the individuals named in the Group Register have claims relating to sexual assault/abuse by two officials of the Celtic Boys Club whilst they were playing for the club.
There are, as yet, no reported decisions in the case, but it has attracted widespread publicity. Media reports indicate that permission to proceed as a group was granted by the Court of Session because the question of vicarious liability of the defenders is a common issue in the proceedings.
This case again demonstrates the utility of group proceedings in establishing common issues of liability, even in cases which may typically be so individual in terms of injury and causation.
Progress, Pitfalls and Possibilities
The new rules brought in by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the “2018 Act”) sought to implement reforms and modernise civil court procedure in Scotland. To achieve that objective, group proceedings were introduced with a view to improving access to justice and allowing better efficiency in terms of handing large-scale actions involving multiple pursuers. The rules allow two or more parties who have the same or similar claim to raise their actions together, avoiding the need for individual actions to be raised and then brought together by the court, as was previously done.
The authors have already seen the range of cases that are utilising the new procedure, and would suggest that the rules do represent progress towards access to justice. The sheer number of claimants utilising the procedure to bring one group case is progress from the previous practice of having to raise individual actions.
In terms of the pitfalls, the rules do provide little guidance in certain areas such as who is a suitable candidate to act as representative party. This is likely to lead to argument and challenges being faced at the initial stages of a case. It is likely that defenders will try to challenge the interpretation of the court rules, leading to procedural delays.
The 2018 Act provides for a five-year review of the new regime; and when this time comes there will be an opportunity to learn from the way the rules have operated in practice. Indeed, procedural arguments and interpretation challenges can often be a vehicle for obtaining clarity and guidance for the future.
Whilst the 2018 Act allows for “opt-in” and “opt-out” group proceedings, so far only rules for “opt-in” procedure have been implemented. This model means that only those pursuers who have sought to be part of the group action will be bound to the court’s decision. The Scottish Civil Justice Council, which prepares the court rules, continues to consider a number of related policy matters, including whether to extend the rules to public law (judicial review) cases and the potential implementation of an “opt-out” regime. These changes would likely lead to an increase in the sorts of cases seeking to utilise the group procedure mechanisms in Scotland.
The procedure fits well for large-scale consumer actions, product liability cases and anywhere where there has been wide-scale negligence or failings resulting in loss, injury or damage to a class of pursuers, meaning the possibilities for future group proceedings in Scotland are wide-ranging. It is certainly an area in which active litigation will likely be seen in the years to come.
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