Collective Redress & Class Actions 2024 Comparisons

Until 2020, Scotland lacked a formal class action regime, forcing claimants to rely on individual actions, which were case managed together by the court usually by a test or lead case being identified that would set a precedent for the others. This approach was often inefficient and hindered access to justice.

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 introduced group proceedings, an opt-in class action framework that came into force in 2020. Key drivers for the regime included:

• improving access to justice for claimants with small claims;
• enhancing efficiency in mass claims;
• increasing efficiency in respect of the use of court time; and
• encouraging accountability.

This reform was influenced by class action systems in other jurisdictions, aiming to streamline collective redress while maintaining court oversight to prevent frivolous claims.

Scotland’s group proceedings regime is influenced by the class action system in the USA and group litigation orders in England and Wales.

Scotland currently uses an “opt-in” model, requiring individuals to actively join the group proceedings. This differs from the “opt-out” model in the USA, where all potential claimants are included unless they opt out. Interestingly, the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 also provides for opt-out proceedings to be used (see Section 20 (7)), but this is not reflected within the governing Rules of the Court of Session (Chapter 26A). As such, in practice, only the opt-in procedure may be used in Scotland at present.

Compared to England and Wales, which also use an opt-in approach for Group Litigation Orders, Scotland’s regime aims to be more flexible and accessible, streamlining the process and reducing costs for claimants.

While inspired by other systems, Scotland’s regime is tailored to its legal context, emphasising efficiency and claimant participation.

Scotland is not required to implement the EU collective redress regime because the UK, including Scotland, is no longer a member of the EU following Brexit. Scotland has its own group proceedings regime, which allows for collective redress in a manner similar to the EU directive.

The principal laws governing collective redress in Scotland are primarily found in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, which came into force on 31 July 2020. This Act introduced formal group proceedings, allowing multiple claimants with similar issues to bring a single action.

The procedural rules for group proceedings are detailed in Chapter 26A of the Rules of the Court of Session. These rules prescribe for the various tests that must be met in order to bring group proceedings and who may be appointed as a representative party; they focus on judicial case management, ensuring that cases are handled efficiently and fairly. The rules streamline processes like claim consolidation and case management hearings, and offer flexibility to tailor procedures to the specific needs of each case.

There is no specific limitation on the areas of law, types of disputes or issues to which the group proceedings regime in Scotland applies: any situation where multiple individuals have similar claims against the same defender can be addressed through group proceedings. This makes it a versatile tool for collective redress in Scotland. To date, the regime has been used to litigate ESG-related claims and claims alleging breaches of consumer rights and personal injury law (historic abuse cases).

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 defines group proceedings as involving two or more persons, each with separate claims that raise issues which are the same, similar or related in terms of law or fact. There is limited case law interpreting this definition.

However, in Hugh Hall Campbell QC v James Finlay (Kenya) Limited [2022] CSIH 29, the court assessed whether the issues were sufficiently similar to be tried as group proceedings. Workers at a Kenyan tea plantation claimed injuries due to employer negligence. The Inner House upheld that the claims shared common factual and legal issues – the employer’s practices and whether they were negligent – and that resolving these issues would address all claims, leaving only individual causation to be determined.

This suggests that the Scottish court will take a broad view when assessing what constitutes similar issues of fact or law.

The mechanism for bringing a collective redress or class action suit in Scotland is through group proceedings. This procedure was introduced by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 and allows multiple parties to jointly bring claims with common or related issues of fact or law.

Group actions must be initiated in the Court of Session, Scotland's highest civil court, by an authorised representative on behalf of the group. Currently, it is an opt-in system only, requiring members to actively join the litigation. However, the 2018 Act permits the introduction of an opt-out procedure via secondary legislation.

To initiate group proceedings, claimants must prepare and serve the following key documents on the defender:

• a summons setting out the claim against the defender;
• a group register that details all the claimants involved in the action;
• an application for permission to bring the action as group proceedings; and
• an application to designate a specified individual as the representative of the claimant group, usually submitted with the application for permission.

Service of the group register on the defender stops the clock in terms of timebar.

Once the court grants permission, the subsequent procedure is largely judge-managed. The appointed judge decides how best to advance the case to a final hearing, utilising extensive case-management powers. Normally, the same judge will handle the case from beginning to end.

Standard cost rules apply in group proceedings, with expenses typically following success. However, in personal injury and fatal claims, costs are not awarded against an unsuccessful pursuer unless misconduct is involved.

Decisions bind all group members, and appeals in group proceedings follow the standard civil procedure.

Natural or legal persons who have a direct interest in the matter being litigated and whose claims arise from the same or similar circumstances have standing to bring group proceedings in Scotland.

However, a key aspect of the procedure is the appointment of a lead representative to act on behalf of all group members. The lead representative is known as the “representative party” and may be a claimant within the group or a representative body such as a consumer association or environmental group that does not have a claim in the proceedings.

The court considers several factors in deciding if someone is suitable to be the representative party, as follows:

• special abilities and expertise – the applicant’s relevant skills and knowledge;
• interest in the proceedings – the applicant’s personal stake in the case;
• potential benefits – any possible advantages, financial or otherwise, the applicant might gain if approved;
• independence – assurance that the applicant is independent from the defender;
• fairness and adequacy – proof that the applicant will act fairly and in the best interests of the group, without any conflicts of interest; and
• competence and resources – evidence that the applicant can manage the litigation properly, including having the financial means to cover any costs.

In Scotland, determining who belongs to the relevant class for group proceedings involves identifying individuals whose claims share common issues of fact or law. There must be at least two claimants, but there are no specific upper limits on the number of claimants within the class. The mechanism for joining an action is currently “opt-in”, meaning individuals must actively choose to join the group proceedings. The procedural rules require the maintenance of a group register that lists all the claimants who have opted into the litigation.

The rules allow for new members to be added to the group, and for existing members to withdraw after permission is granted.

To join or withdraw, a member must notify the representative party, which must then update the group register and submit it to the court and serve on the defender within 21 days. Proof of service must be provided to the court within 14 days. All group members should be informed of any changes.

For new members, the proceedings officially start when the updated group register is lodged with the court and served on the defender.

Special rules apply for adding or withdrawing members where a proof (trial) has been fixed or commenced.

The court has extensive case management powers in group proceedings in Scotland. Under Part 9 of the procedural rules, the judge can make any order necessary for the fair and efficient resolution of the action. This could include using test cases or restricting the proceedings, initially, to specific claims or issues. Typically, the same judge oversees all stages of a group action, except in exceptional circumstances.

The group proceedings regime was introduced in Scotland in 2020, so there is limited evidence to assess the average duration of such actions from start to finish. However, it is anticipated that the length of proceedings will vary depending on the complexity of the case, with timescales usually ranging from one year to several years.

Regarding the timetable for proceedings, after defences are lodged, a preliminary hearing must occur within 14 days. At this hearing, the judge will decide how the case should proceed, including issuing preliminary orders such as requiring further specification of the written pleadings or the disclosure of witness lists. A case management hearing will subsequently be held, at which a trial date or a date for a legal debate will usually be scheduled, and consequential orders made.

The procedural rules give the court considerable discretion in managing the timetable for group proceedings. The court can issue various orders to ensure the fair and efficient resolution of disputes, including scheduling additional preliminary and case management hearings where needed. Parties also have the option to request a sist (temporary suspension) of the action or to lodge a motion to modify the timetable set by the court during the proceedings.

In Scotland, third-party funding for group proceedings is permitted. Although not yet in force, provisions in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 will require the party receiving the funding to disclose the funder’s identity, any intermediaries involved, and the nature of the support provided. Success fee arrangements, such as speculative fee agreements or damages-based agreements with solicitors, are also allowed, subject to certain limits.

There are no specific rules for expenses (costs) in group proceedings. The general principle that “expenses follow success” usually applies, meaning the court typically orders the losing party to pay the winner's costs at the end of the litigation. However, in personal injury and fatal claims, qualified one-way cost-shifting is in effect. In these cases, an unsuccessful pursuer is not usually required to pay expenses unless they have conducted the litigation improperly, such as fraudulently.

In Scotland, there is no automatic disclosure process and no general requirement to disclose evidence, unless specifically ordered by the court to do so.

At the start of proceedings, the party seeking permission to bring the group action must provide all relevant documents to enable the court to decide on the matter and submit any documents referenced in the pleadings. During the preliminary hearing, the court may order the disclosure of witness lists and relevant additional documents.

The normal rules of privilege apply in group proceedings in Scotland.

There are no limitations on the types of remedies available to claimants in group proceedings. The remedies available are the same as those in civil court actions involving individuals and include compensation, interdicts (injunctions) and declarators. So far, damages have been the primary remedy sought.

The parties are encouraged to seek extrajudicial settlements, and the rules require them to report their efforts and the likelihood of settlement at the case management hearing. The judge can also require the parties to meet to discuss settlement possibilities.

In addition, parties can explore informal settlements through alternative dispute resolution (ADR) mechanisms, such as mediation, by agreement.

The court’s judgment in group proceedings is binding on those who have opted into the action. A successful outcome cannot be relied upon by non-members, who are also not bound by any settlement and may raise their own actions.

Judgments from group proceedings in Scotland are enforceable in the normal manner. Enforcement can begin once the extract decree (a court-certified copy of the judgment) is issued.

There are ongoing discussions about developing rules to allow for opt-out group proceedings in Scotland. Opt-out group proceedings would automatically include all affected individuals unless they actively choose to opt out. The Scottish Civil Justice Council has indicated that they may establish a working group to explore this option further. The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 allows for opt-out proceedings, but the Court of Session rules would need to amended to facilitate their use.

Scottish Ministers are required to review the group proceedings rules and their impact on access to justice and the administration of Scottish courts after five years. This review, scheduled for 2025, must result in a report being laid before the Scottish Parliament, including a statement on whether any modifications to the provisions in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 on group proceedings are proposed.

Foreshadowed legislative reforms include the following.

• The 2018 Act mandates a review of the group proceedings rules in 2025. While the specific reforms are yet to be determined, this review may identify areas for improvement and potential legislative action to enhance the framework for group proceedings.
• Section 10 of the 2018 Act is not yet in force, but will require the disclosure of any third-party funding arrangements in group proceedings once implemented. This aims to increase transparency and ensure all parties are aware of the financial backing behind litigation.

ESG issues have significantly shaped group proceedings. In Scotland, there are currently three active sets of group proceedings related to diesel emissions. These cases underscore the increasing legal scrutiny and accountability for environmental impacts, reflecting broader societal and regulatory demands for corporate responsibility. Several claims are also believed to be progressing at the pre-litigation stage.