Collective Redress & Class Actions 2025 Comparisons

Scotland’s formal collective redress/class action regime was introduced in July 2020 when Part 4 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 came into effect (the “2018 Act”). Prior to this, groups of similar or related actions were dealt with more informally by the court through the use and adaption of existing procedural mechanisms.

History Leading to the 2018 Act

In 1979, the Scottish Consumer Council formed a group that suggested creating formal procedures for class actions, details of which were provided in a report published by the group in 1982. This then stimulated discussions in the context of the Scottish Law Commission’s review of multi-party actions, who reported on the issue in 1996. Later, in 2009, the Report on the Scottish Civil Courts Review (the “Gill Review”) was published. Both the Scottish Law Commission Report and the Gill Review concluded that the more informal case management procedures already in place could be improved with a new dedicated process for group legal actions. In a similar vein, in 2013, Sheriff Principal James Taylor’s “Review of Expenses and Funding of Civil Litigation in Scotland” highlighted the need to improve access to justice by reducing the financial risks and burdens on individual litigants. Similar developments were taking place in England and Wales around the same time.

Policy Drivers for the 2018 Act

The overriding policy objective of the group procedure regime in Scotland is to widen and improve access to justice, including for consumer groups.  This is linked to the aim of making civil justice more affordable and equitable. Prior to the legislation being introduced, each pursuer (claimant) was required to pursue a claim individually. This was criticised as resulting in unnecessary expense for parties. The group procedure regime is also intended to make the court system more efficient by reducing duplication of effort and court time. According to the Policy Memorandum for the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, which led to the 2018 Act, group procedure was also intended to promote responsible business and protect the rights of consumers. 

In the case of Joseph Mackay v Nissan Motor Co Ltd and Others [2025] CSIH 14 at [72]–[75], the Inner House (Scotland’s civil appellate court) narrates its understanding of the underlying policy objectives: “The procedure is intended to be streamlined and efficient. The court is expected to handle group claims in a flexible and cost-efficient manner... A further policy aim of the 2018 Act is to promote social responsibility on the part of businesses and thereby to protect and strengthen the rights and interests of consumers. Facilitating an efficient and effective means of collective redress for groups of claimants has the potential to deter damaging conduct by businesses.”

The 2018 Act and Parliamentary Debate

When the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill was introduced in the Scottish Parliament in 2017, it only included an opt-in model for group proceedings (that is where individuals with similar legal claims must actively choose to participate in the litigation). During the first parliamentary debate in January 2018, some argued that opt-out procedures (where all individuals who fall within the scope of the proposed class definition are automatically included in the group unless they expressly choose to opt out) should also be allowed. This support relied in particular on points made by consumer group Which? about improving access to justice.

The opt-out model has gained in popularity internationally, particularly in the US, and among consumer groups and representatives in the UK. However, it is more controversial in the UK and generally opposed by business representatives. Its mode of operation can significantly increase the number of claimants. Ultimately, it was decided that the 2018 Act would include an opt-out mechanism, although only the provisions for opt-in procedure have been implemented so far. It is understood that the decision to only introduce court rules for the more straightforward opt-in procedure in the first instance was in part driven by practicality and a desire to have some form of procedure for group proceedings set up quickly. The opt-out provisions remain in the legislation and require only new court rules, and not new primary legislation, for their implementation (see further in 3.4 Class Members, Size and Mechanism – Opting In or Out and 4.1 Policy Development).

Implementing the 2018 Act

The 2018 Act provides a framework for group proceedings in Scotland. This framework is supplemented by court rules which provide further detail on the procedure to be followed. These rules are developed by the Scottish Civil Justice Council (SCJC). The SCJC is the statutory body responsible for drafting and reviewing civil procedure court rules in Scotland.

The legislative regime in Scotland is not expressly declared to be based on any regime in any other jurisdiction or forum. However, there are similarities with concepts which appear in other collective redress/class actions schemes established before it. In particular, there are similarities with the regime in the Competition Appeal Tribunal (CAT). For example, Scotland’s eligibility rules for group procedure are similar to those for claims in the CAT. In both instances, claims must raise the same, similar or related issues of fact or law.

Historic Comparisons With Other Regimes

In early discussions about legislative reform, particularly in the 2009 Gill Review mentioned above (see 1.1 History and Policy Drivers of the Legislative Regime), consideration was given to the regimes in several other jurisdictions (England and Wales, the USA, Canada, Australia and various European Union member states) as well as the CAT. Ultimately, a selection of those elements considered most desirable from other jurisdictions were included in the draft legislation. This included rules on establishing the need for a representative party and requiring both a certification stage and a merits test. 

Mention of England and Wales Regimes in Recent Case Law

It was initially expected that Scottish courts might follow one of the approaches used in England and Wales for managing groups of legal claims. However, in Bridgehouse v BMW [2024] CSOH 2, the court made it clear that Scotland’s group procedure is different from both Group Litigation Orders (GLOs) and Representative Actions. GLOs act as a wrapper around individual claims. In contrast, Scotland’s group procedure involves one single action brought on behalf of all group members. 

The court in Bridgehouse also took the view that the English GLO concept of common issues is not relevant in Scotland due to the fact that there is not the same procedural requirement to divide issues into common and individual issues in Scottish group procedure. Although the authors make the observation that this issue may need to be explored in more detail by the court in due course as no case has yet progressed far enough on the procedural track to establish how this will apply in practice. In Bridgehouse, it was also noted that a representative action is a procedure of some antiquity which has no counterpart in Scotland and is unique to England (and other common law countries to which it has been imported).

This is not applicable to Scotland, although it is discussed in the Scotland Trends & Developments chapter in this guide.

Group Proceedings Legislation and Court Rules

A formal mechanism for class actions in Scotland (known as “group proceedings”) was introduced by Part 4 of the 2018 Act. The legislation came into force on 31 July 2020 and is implemented from a practical perspective by Chapter 26A of the Rules of the Court of Session, together with accompanying Practice Note No 2 of 2020. It is intended that the court rules framework encompasses only the essential procedural elements that are required to enable group proceedings to operate effectively in the court, enabling flexibility to allow the matter to proceed in the most efficient and effective manner.

For completeness, other mechanisms that may be available to litigants in multi-party actions in Scotland are mentioned below.

Informal case management procedures

As noted, prior to 31 July 2020, the Scottish courts used and adapted existing procedural mechanisms to deal with groups of similar actions together on a more informal basis. Generally, each party would start their own case separately. One case would be chosen to proceed first – called a “lead case” – whilst the others were sisted (paused/stayed). Sometimes the court can issue special instructions called “Practice Directions” to guide how related cases should be handled.

A recent case, Michelle Donnelly v Johnson & Johnson Medical Limited [2025] CSOH 77, suggests that these more informal case management tools using lead cases and Practice Directions may still be preferable options in appropriate cases. This may be particularly so in cases where the number of group members is relatively low (in Donnelly there were 17 claimants) and/or where the degree of commonality between cases is more limited (as was found to be the case in Donnelly) – for example, in situations where there may be some scope for generic evidence but overall there are significant differences between individual claims which will merit individual assessments of causation and quantum. This could be less onerous procedurally where there is a relatively small number of claimants (see further at 2.3 Definition of Collective Redress/Class Actions).

Collective proceedings in competition law matters

In matters of competition law, Scotland also has a formal class action mechanism by way of the collective proceedings procedure in the CAT, which has UK-wide jurisdiction. The mechanism is provided for in Section 47B of the Competition Act 1998, introduced by Schedule 8 of the Consumer Rights Act 2015. Prior to 31 July 2020, this was the only formal class action mechanism in the jurisdiction. 

Where the Competition and Markets Authority finds that a company or other organisation has infringed competition law then this will often result in a Collective Proceedings Order being brought before the CAT by affected claimants seeking what are known as follow-on damages. It is also possible to bring standalone collective proceedings before the CAT where the representative must prove the infringement as part of those proceedings (see further at 2.2 Scope of Areas of Law to Which the Legislation Applies).

Civil Claims

Group procedure may apply in situations where there are civil claims by multiple individual claimants which raise issues of either fact or law which are “the same as, or similar or related to, each other”. There is no restriction on the type of civil claim which may be raised but it is expected that the procedure will most commonly be used for claims in contract or delict (tort) where damages are sought as a remedy.

Examples of Group Proceedings Claims in Scotland

Most group proceedings to date relate to consumer protection and product liability matters. In particular, the procedure has been dominated by claims relating to vehicle diesel emissions in respect of which there are currently several group proceedings running before the Scottish court. There have also been claims relating to historic sexual abuse (The Celtic PLC Group Proceedings COS-GP2-22 and The Krishna Singh Group Proceedings COS-GP10-25) and personal injury claims by former/current employees (The James Finlay (Kenya) Ltd Group Proceedings COS-GP1/22). With the exception of one set of group proceedings initiated by a consortium of housing authorities concerning alleged construction defects, the cases so far have generally not involved a commercial litigation subject matter.

Competition Law Matters

Competition matters fall to be dealt with by the CAT, which has jurisdiction in Scotland as one of the UK nations (including Scotland). As noted in 2.1 Collective Redress and Class Action Legislation, Section 47B of the Competition Act 1998 provides the legislative basis for collective proceedings before the CAT. The basis of the claim must relate to an infringement of UK competition law (or, in more limited circumstances, EU competition law where the infringement was pre-Brexit or is retained law in the UK). The intention of the regime is to make it easier for consumers (including businesses) to seek redress where they have suffered loss because of a breach of competition law. Generally, the CAT has taken a broad view of what is within its remit.

There are two types of collective actions that can be brought before the CAT: follow-on and standalone. Follow-on actions arise when a competition authority, such as the Competition and Markets Authority or the European Commission, has already investigated and found a breach of competition law. In contrast, standalone actions are initiated independently of any prior regulatory investigation, meaning the alleged infringement has not yet been formally examined or determined by a regulator.

Two recent examples of matters before the CAT are:

• Merricks v Mastercard [2025] CAT 28, which relates to credit card interchange fees and consumer overcharges; and
• Le Patourel v BT [2024] CAT 76, which relates to excessive telephone landline pricing.

A person (a “representative party”) may bring group proceedings in the Court of Session on behalf of two or more persons (a “group”) each of whom has a separate claim which may be the subject of civil proceedings. The representative party must be authorised to act as such by the court. Group proceedings may also only be brought with the court’s permission. There are three core elements to this permission set out in the 2018 Act and the supporting court rules. These can broadly be described as an overriding commonality test, together with discretionary tests on merits and efficiency.

Commonality Test

As provided for in Section 20(6) of the 2018 Act, the court will only grant permission for the action to proceed if it considers that:

• all of the claims made in the proceedings raise issues (whether of fact or law) which are the same as, or similar or related to, each other; and
• if it is satisfied that the representative party has made all reasonable efforts to identify and notify all potential members of the group about the proceedings.

Merits and Efficiency Tests

The court rules state that an application for permission may be refused where it has not been demonstrated that:

• there is a prima facie case (ie, a serious question to be tried);
• it is a more efficient administration of justice to bring the claims as group proceedings rather than as individual proceedings; and/or
• the proposed proceedings have real prospects of success.

Application of the Tests by the Court

Until relatively recently there had been limited guidance on how the courts will interpret these requirements. However, there is now a steady stream of cases which suggest a permissive approach.  Detailed consideration was given to this issue in The James Finlay (Kenya) Ltd Group Proceedings where a group of Kenyan tea pickers have been permitted to advance group proceedings in respect of musculoskeletal injury arising from their employment ([2022] CSIH 29 and [2022] CSOH 12).

In Michelle Donnelly v Johnson & Johnson Medical Limited [2025] CSOH 77, whilst it was accepted there was a prima facie case (and it therefore met the low bar for a merits assessment), the court found that commonality was not clearly established as the claims involved multiple different hernia mesh products with potentially distinct failure modes and injuries which required individual assessment. Also, on the efficiency test, the court was not persuaded that group proceedings were more efficient, especially given the small number of claimants (17) and the complexity of individual prescription and limitation issues.

Group Procedure in the Court of Session

Group proceedings must be initiated in the Court of Session, which is Scotland’s highest civil court. The legislative and procedural framework is designed to accommodate a broad spectrum of claim types. Aside from establishing a few core requirements, the 2018 Act is facilitative in nature, leaving much of the procedural detail to be governed by the court rules. As stated in 2.1 Collective Redress and Class Action Legislation, the procedural rules are set out in Chapter 26A and should be read alongside Practice Note No 2 of 2020.

Informal Case Management Mechanisms

See 2.1 Collective Redress and Class Action Legislation.

Scotland’s courts (in particular, the Court of Session) also have various case management tools which can be deployed in order to run individual but related actions together in a more efficient manner. This is separate to the formal group procedure mechanism described above.

Competition Appeal Tribunal

Scotland also has a formal class action mechanism by way of the collective proceedings procedure in the CAT which has UK-wide jurisdiction. Prior to 31 July 2020, this was the only formal class action mechanism in the jurisdiction.

The court rules were drafted in intentionally broad terms to form a framework for only the essential procedural elements that are required to enable group proceedings to operate effectively in the court. This is to allow for flexibility and efficiency in individual cases. Given the absence of detail in some respects of the court rules, judicial guidance through case law has been, and will continue to be, necessary. The initial stages of procedure can be summarised as follows.

Commencing an Action

To commence group proceedings, claimants must serve on the defender(s):

• a draft of the summons (the claim form) through which they propose to institute proceedings;
• a group register containing the claimants and other relevant information;
• an application for permission to appoint a representative party; and
• an application for permission to bring group proceedings.

Once served, parties enter the permission stage where the court decides whether to authorise the appointment of a representative party (the individual or entity authorised by the court to bring and manage the litigation on behalf of a group of claimants), and whether to authorise the bringing of group proceedings. These two stages are interlinked but sequential with the application for appointment of a representative party being determined first.

Appointment of a Representative Party

To successfully appoint a representative party, it must be shown that the proposed person or entity is a suitable person. The court should consider:

• the applicant’s interest in the proceedings;
• their special abilities or relevant expertise;
• whether they are independent from the defenders;
• their ability to act fairly and adequately in the interests of the group; and
• their competence to litigate, including financial resources to meet potential expenses.

Application for Permission

The applications for permission can be opposed by the defender(s). Time is provided for answers to the applications to be lodged with the court. This will usually result in a hearing on the applications at which the court must decide, based on criteria provided in the rules, whether permissions should be granted.

Test for Permission Application

See 2.3 Definition of Collective Redress/Class Actions.

When deciding whether to grant permission to bring group proceedings, the court must be satisfied that the proposed proceedings raise issues of fact or law that are the same or similar across the group.

The court may also consider whether the applicant has demonstrated a prima facie case and whether the proceedings have a real prospect of success. This is a low-threshold, discretionary test and the court will not conduct a full hearing on the merits at this stage. The court may also consider whether it is more efficient administration of justice to bring the claims as group proceedings rather than as individual proceedings. 

Procedure Beyond Initial Stages

Chapter 26A of the court rules and accompanying Practice Note No 2 of 2020 contain some detail on the next stages of procedure including the form of pleadings, documentary evidence and substantive hearings but overall the court is expected to take a pragmatic and flexible approach beyond the permission stage. There is uncertainty about how the court will approach and resolve the claims of individual group members/claimants which form part of the group and no group proceeding has yet reached that stage. Legal practitioners and litigants in Scotland are watching with interest as more cases continue down the procedural track and judicial guidance is received on these issues.

For completeness, the following is worth mentioning: (i) the availability of more informal case management tools which can be deployed in situations where multiple individual actions raise similar issues and (ii) that the Competition Appeal Tribunal has jurisdiction across the whole of the UK in respect of competition law matters (see 2.1 Collective Redress and Class Action Legislation).

Group proceedings in the Court of Session must be brought by two or more natural or legal persons who have claims which are the same as, similar, or related to one another. The group must be led by a representative party who is authorised by the court. The representative party may either be a member of the group (ie, one of the claimants) or an external party or body, such as a trade union or consumer organisation. In some cases, the court has authorised third-party senior counsel to act as the representative party. When deciding whether an applicant is a suitable person to act as the representative party, the court should consider the factors listed in 3.2 Overview of Procedure.

The rules surrounding the appointment of a representative party have been the subject of judicial interpretation, most recently in the decisions in Joseph Mackay v Nissan Motor Co Ltd and Others [2025] CSIH 14 and Steven Milligan v Jaguar Land Rover Automotive Plc and Others [2025] CSIH 16. In those cases, the court emphasised the absence of disqualifying factors as the key consideration when considering authorisation of a representative party, rather than requiring the presence of specific positive attributes.

There is no upper limit to the number of group members in Scottish group proceedings. Group members can bring joint proceedings if the proceedings raise issues (of either fact or law) which are the same as, similar to, or related to one another.

The 2018 Act enables the Court of Session to provide for both opt-in and opt-out proceedings but, so far, only opt-in proceedings are permitted by the court rules. The 2018 Act provides for review by the Scottish Ministers as soon as reasonably practicable after five years from its commencement. As part of this statutory review process and the work currently being undertaken by the Scottish Civil Justice Council, the practical implementation and detail of opt-out procedure is now being actively considered.

The opt-in process adopted in Scotland enables additional parties to join group proceedings by being added to the Group Register that is maintained by the representative party. The Group Register is a formal record of all claimant parties who have opted into the proceedings and is lodged with the court. It can be updated on an ongoing basis by the representative party and shared with the court and the defender(s). The Group Register is to be considered by the court at all hearings of the proceedings. The issue of when, and on what basis, the court will close the Group Register remains to be seen.

The court’s case management powers in group proceedings are wide. The procedure is, in parts, based upon the Court of Session commercial actions model which is designed to provide the court with flexibility and wide discretionary powers to expedite the process. Judges are encouraged to take a proactive approach. Typically, once proceedings are allocated to a certain judge, that judge will deal with the proceedings from start to finish. The judge can order any procedural steps they deem appropriate for the complexity and nature of the case. This has included, for example, the court ordering targeted document recovery and fixing monthly hearings for updates on the progress of disclosure.

Estimated Length of Proceedings

As group procedure remains in its early stages, and with many cases having either settled or still continuing to progress, it is not currently possible to estimate the typical duration of group proceedings in Scotland. It is reasonable to assume that it will take more than a year or two (and most likely longer) from the initiation of procedure to receiving judgment following an evidential hearing. The time required will vary depending on the nature and size of the group and the issues to be addressed. However, given that the group proceedings will often involve large numbers of claimants and complex issues, the time required to resolve will be measured in years. There are appeal rights at various stages of the procedure (some of which require leave/permission) which might also impact on the timeframe to resolution. 

Hearings

The rules provide that, following the permission stage, once defences have been lodged with the court, a preliminary hearing should happen within 14 days. At this hearing, the court can make a variety of orders including for parties to provide further detail in their pleadings or the provision of a list of witnesses. Thereafter, a case management hearing should be set. At this hearing the court may set down dates for an evidential hearing or a debate (a hearing on legal arguments without hearing evidence). Outside of these prescribed hearings, the court can fix incidental hearings to consider matters such as document production.

Untested Parts of the Procedure

While courts are expected to actively manage group litigation with an aim to expedite progress, the inherent procedural and administrative complexity of these cases is likely to result in longer timelines compared to other cases. The rules remain untested in a number of respects which, at least for the groups currently before the court, adds uncertainty to the procedure and time required to reach conclusion. A key area of uncertainty lies in how the court will handle the assessment of damages and the process required to do so and specifically, whether this will fall under the scope of determining “issues (whether of fact or law) which are the same as, or similar or related to, each other”, or be treated as a separate matter. Recent case law has suggested that a single judgment will be issued in satisfaction of the claims of all group members. However, further clarification of this part of procedure through either formal rules or judicial interpretation is awaited.

Case Management in Group Proceedings

The court’s broad case management powers include the ability to structure the court timetable in a way that enables proceedings to be dealt with in the most fair and efficient way. This can include continuing (ie, postponing) hearings to allow parties time to address outstanding issues and allocating time for parties to adjust their pleadings. The court can also grant a sist which is the Scottish legal term for halting or suspending a court action. It is equivalent to a stay in English law. Once an action is sisted, no procedural steps can be taken unless the sist is recalled.

A sist is typically granted on the motion (request) of one or more parties. The motion should specify the reason for the sist being sought and the duration for which it is sought. The court should only grant a sist where there is a valid reason, such as, for settlement discussions or there are related proceedings ongoing that would impact on the proceedings. An example of this is the sisting of the James Finlay group proceedings pending the resolution of the group members’ ongoing claims in Kenya under the Work Injury Benefits Act.

At permission stage, the court rules provide that a sist must be for no longer than 28 days, but can be renewed.

Summary Decree

A summary decree is a fast-track judgment and is awarded in cases with no real prospect of success. This would be unlikely in group proceedings as the proceedings should not be authorised by the court at the stage of granting permission to bring group proceedings.

Decree by Default

This is a judgment when a party has not complied with certain procedural requirements. When a defender fails to respond to the court action, such as failing to appear or provide a defence, within the required timetable, the court can order decree by default.

Debate

A party to litigation in Scotland can seek to have proceedings disposed of at a debate (a hearing where the court considers legal arguments on preliminary pleas, such as whether the case should be dismissed, without hearing evidence). This can be sought, for example, on the basis of a party not providing sufficiently specific or relevant pleadings. Depending on the outcome of the debate, this may avoid the need for an evidential hearing altogether or possibly limit the scope of such a hearing.

Funding Options

The 2018 Act introduced several funding mechanisms to improve access to justice. Third-party funding of litigation in Scotland is permitted under the Act.

Funding mechanisms include:

• speculative fee agreements – commonly known as “no win, no fee” arrangements, where solicitors are paid only if the case succeeds;
• damages-based agreements – the solicitor or funder receives a percentage of the damages awarded if the case is successful; and
• third-party litigation funding – external funders (often commercial entities) may finance the litigation in return for a share of the damages or settlement.

Legal Aid can also be made available in some cases, subject to eligibility and approval by the Scottish Legal Aid Board.

Financial Position of the Representative Party

When considering an application to appoint a representative party, a matter for the court to consider is whether the applicant has demonstrated sufficient competence to “litigate the claims properly, including financial resources to meet any expenses awards”. The applicant is, however, not currently required to disclose details of their funding arrangements. This will change if/when Section 10 of the 2018 Act comes into force.

Caution

Caution (pronounced “kay-shun”) is a legal mechanism in Scotland where a party is ordered to provide financial security – usually in the form of a bond or deposit – before proceeding with a court action. It is designed to protect the opposing party from the risk of being unable to recover legal expenses if they win the case. There is a high bar to be satisfied in a request for caution; to be successful a party needs to show a legitimate concern that the other party (usually the pursuer) lacks the financial means to pay any award of expenses against them if unsuccessful.

So far, while the possibility of seeking caution has been discussed at a number of procedural hearings, no party has sought caution in group proceedings.

Awards of Expenses (Costs)

In Scotland, expenses are typically awarded to the successful party in the litigation. Interim awards of expenses can be made for different parts of procedure as cases progress, for example, if a party successfully opposes a motion (ie, an application to the court), they may be awarded the expenses associated with it. Expenses are awarded at the discretion of the court.

Disclosure

At the permission stage, the claimant group must provide all relevant documents in the applicant’s possession which are “necessary for the court to determine whether or not to give permission”, as well as any documents referred to in the pleadings.

In Scotland, parties are not under a general duty of disclosure unless ordered by the court or the parties agree to disclose evidence voluntarily. Even where a court order is made, disclosure is generally provided on a narrow and targeted basis with reference to a list of documents or specified categories of evidence. The court assesses whether the requested evidence is relevant and material to the case before granting an order. Recovery can also be ordered from third parties.

It would appear that similar principles will apply in respect of group proceedings, though Chapter 26A of the court rules provides a wide basis for recovery of documents (in a similar manner to specialist commercial and intellectual property actions before the court). The rules enable the court to order disclosure of the existence and nature of documents “relating to the proceedings” and to grant authority for the recovery of documents either “generally or specifically”. There is extensive discussion about the basis of disclosure in group proceedings in David Brian Batchelor v Opel Automobile GMBH & Ors [2025] CSOH 18. 

Confidentiality and Privilege

Where the provider of documents wishes to claim confidentiality (eg, on the basis of commercial sensitivity or legal privilege) over any or all of the documents being disclosed in Scottish litigation, a specialist procedure can be invoked to consider such documents outside of the main proceedings and restrict their disclosure in appropriate cases. It is expected that the same (or a similar) procedure would be available in the context of group proceedings specifically.

Legal privilege in Scotland applies fully to group proceedings and serves as a critical safeguard for withholding relevant confidential communications from disclosure. There are two main types of privilege: legal advice privilege and litigation privilege. Legal advice privilege protects confidential communications between a lawyer and their client made for the purpose of seeking or giving legal advice, regardless of whether litigation is anticipated. Litigation privilege, on the other hand, covers confidential communications between a lawyer/client/third party, provided they are created for the sole or dominant purpose of obtaining information or advice in connection with the conduct of existing or reasonably contemplated litigation.

All remedies available to claimants in Scottish court proceedings generally are also available in group proceedings. The most commonly sought remedy is damages but proceedings seeking interdict, declarator or specific implement are possible.

• In cases of delict (tort), the remedies available are designed to compensate the injured party and restore them, as far as possible, to the position they would have been in had the delict not occurred.
• In claims of breach of contract, the law seeks to place the claimant in the position they would have occupied had the contract been duly performed. The remedies available will depend on the specific contractual term that has been breached. A claimant may be entitled to compensation for financial losses resulting from the breach, and may also pursue an order requiring the defendant to perform the contractual obligations as agreed.
• Claimants in Scotland can seek interim remedies, including interim interdict (injunction).

ADR mechanisms, such as mediation, are available to parties upon agreement in group proceedings. This can include informal “without prejudice” correspondence or meetings between the parties.

Extra-judicial settlement is encouraged in Scottish group proceedings. Parties will be expected to be able to inform the court about the steps that have been taken to date to achieve an extra-judicial settlement and the likelihood of such a settlement being achieved at the case management hearing. The court also has the power to order parties to hold a joint meeting with a view to exploring whether settlement can be achieved. The timing of such a meeting will depend upon when the court thinks it is most likely to be productive.

The nature of judgment and whether any further mechanism for enforcement is required currently remains to be seen. In published judgments the court has described group proceedings as taking the form of a single action brought by the representative party on behalf of group members as a whole, with a view to obtaining a single decree (judgment) in satisfaction of all their claims. However, it is as yet unclear how a single judgment will be drafted and thereafter enforced in circumstances where different group members may be entitled to different awards of compensation or where individual assessments of liability are required. 

In proceedings before the CAT, it may be determined that a judgment does not apply to certain sub-classes or specific individuals within the represented group and the judgment would therefore not be binding on them. The representative party is responsible for notifying all represented persons of the judgment, using a method approved by the CAT.

Scottish Civil Justice Council Working Group

The SCJC, which is the body responsible for drafting and revising court rules, conducted a targeted review of the current court rules on group procedure (Chapter 26A) in the summer and autumn of 2025. The responses to this review are currently being considered by the SCJC Group Procedure Working Group, with a view to exploring possible rule changes. It is expected that in the immediate future this may lead to small changes to procedural rules rather than wholesale changes to the existing law and procedure. That being said, on 24 October 2025, the SCJC announced a call for evidence in relation to group proceedings, with a particular emphasis on whether opt-out group proceedings should be introduced, so the longer-term outlook may involve more significant change.

The Future of Opt-Out Procedure

Opt-out procedure is permitted in the overarching 2018 Act, though not yet implemented by the court rules and procedure. The SCJC call for evidence on group proceedings closes on 23 January 2026 and, depending on the outcome, may lead to a public consultation on the detail of new draft court rules which implement opt-out procedure. However, that process is likely to take some time and due to the relatively controversial nature of opt-out proceedings, it may meet some challenges along the way.

It is expected that strong views are likely to be expressed both for and against its introduction. Opt-out procedure is not currently available in any other UK jurisdictions for non-competition law matters. It may spark concerns in the wider business community given the potential for increased exposure to liability and claimants “forum shopping” in alternative jurisdictions. There is likely also to be concern that if Scotland introduces an opt-out procedure the pressure to do so in England and Wales will increase.

No legislative reforms are anticipated on the immediate horizon.

Opt-Out Procedure

As noted in 4.1 Policy Developments, it is expected that the next biggest development is to be discussions around the introduction of opt-out procedure. There is already legislative authority to introduce this, and it is therefore in the hands of the SCJC to take any next steps in this regard. 

The recent call for evidence by the SCJC is the first step in this process. Depending on the outcome of the call for evidence, it seems likely the SCJC will then commence a targeted consultation amongst practitioners and other relevant bodies (such as the Law Society of Scotland and judicial contacts) and/or a wider public consultation to consider the specific detail of a new opt-out procedure, before the formal introduction of any new court rules or practice directions.

Development of Existing Court Rules

One other area where there may be some development of existing court rules (or at the very least in judicial guidance from existing cases as they make their way through the court process) is in relation to how individual claims/issues within a group proceedings action will be considered by the courts (if at all) and ultimately be resolved.

Statutory Review

Section 23 of the 2018 Act requires the Scottish Ministers to formally review the operation of group procedure as soon as practicable after the end of five years from its commencement (ie, after 31 July 2025). It seems probable that the work currently being undertaken by the SCJC, a statutory body, is connected to this statutory review process.

Funding

In relation to funding, Section 10 of the 2018 Act is not yet in force. When it becomes law it will require the disclosure of any third-party funding arrangements in the course of group proceedings.  This will improve transparency and may provide more strategic insights into the litigation which may ultimately assist parties with moving towards resolution. Whilst the issue of funding has been discussed in group procedure cases in the context of the proposed representative party demonstrating they have financial resources to meet any awards of expenses, the current position is that in so doing the party does not require to disclose the details of any funding arrangements.

Categories of Cases

Consumer protection and ESG issues have been largely responsible for shaping group proceedings in Scotland to date. As noted above, the suite of diesel emissions cases currently dominate group procedure. This is reflective of both wider global trends and is also compatible with the policy aims of the 2018 Act which include the promotion of social responsibility on the part of businesses and in doing so, strengthening the rights and interests of consumers. There is a general trend for increasing ESG-related litigation and this is expected to continue in Scotland in the coming years, including in the context of group proceedings. More historic abuse and personal injury cases are expected to be raised as group proceedings, and group proceedings may broaden into other areas such as data security and financial services.

Judicial Trends

On procedural matters, the court has generally adopted a permissive approach to the initial applications for appointment of a representative party and grant of permission for group proceedings.  The practical application of the procedure is also reflective of the pro-consumer policy stance. This trend is expected to continue. In the recent case of Paul Bell v Volvo Car Corporation and Others [2025] CSOH 64, the judge described the climate as now “somewhat bracing” for defenders seeking to have initial applications to allow the group to progress refused, indicating the high hurdle they would face in making these challenges. 

A similar stance is taken in respect of defenders making arguments that there is a lack of fair notice in the pleadings. In the recent cases of David Brian Batchelor v Opel Automobile GMBH & Ors [2025] CSOH 93 and William Mackie v Mercedes-Benz Group Aktiengesellschaft & Ors [2025] CSOH 94, the court held that fair notice of the claim can be achieved through a summary of the general circumstances pertaining to the group as a whole, and the same level of detail would not be required as in pleadings for individual cases.