Mentions of “class actions” in US-based programmes like Suits is something we have been used to for many years, but it was (perhaps surprisingly) not until the introduction of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the Act”) that these types of actions could be raised in Scotland. At Alba Claims, we receive numerous enquiries from individual claimants looking for assistance with commercial claims, however the Act covers group situations, which is likely to open up the litigation landscape for many.
The relevant parts of the Act came into force on 31 July 2020 and under the Act, the form of procedure in the Court of Session is known as “group procedure”, with proceedings subject to that procedure being known as “group proceedings”. Under group procedure, a representative party can bring group proceedings on behalf of two or more people whose claims raise the same, similar or related issues. Each party must consent to join the group, and the representative does not need to be a member of the group. The representative party must, however, satisfy the court that they are a suitable person who can act in that capacity.
So, what’s new?
The associated rules – the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020 – provide detailed guidance as to how group procedure works in practice. Key parts of the rules state that:
- Before group proceedings are raised, permission must be obtained from the court. This relates to what is called the “permission stage”.
- Appeals can be made against the granting or refusing of permission.
- To give consent for their claim to be raised as part of a group action, a pursuer must issue an “opt-in” notice. A group register of claimants will then be kept.
- The service of a group register upon a defender will result in the commencement of court proceedings
- Within 14 days after defences being lodged, a preliminary hearing will call at court. At that hearing, the Lord Ordinary may make orders such as requiring written pleadings to be made by a party, allowing amendments to pleadings or requiring documents or lists of witnesses to be lodged.
- Claimants may withdraw from group proceedings after the action is raised.
How have group proceedings impacted the Legal sector?
This is for many a much-awaited development in the Scottish legal world, and The Civil Justice Council has commented that this will be particularly useful in cases where lower value claims are considered too costly for individuals to raise separately. Previously, pursuers may have raised actions as part of a wider cohort of cases, with the Court then considering “lead cases”. This could mean that similar cases were litigated separately in the courts, often at a high cost to pursuers. As a result of the new provisions, the courts will most likely also be able to manage cases more efficiently and clients can band together under a single action, making it more cost-effective for claimants
Almost a year on since the introduction of these provisions, we have seen pursuers making use of them in various cases. For example, approximately 5,000 Scottish buyers of Volkswagen cars were given permission to bring a group action against the Volkswagen Group over the emissions scandal in April this year, in one of the largest cases of its kind in Scottish legal history.
Group Proceedings from a Commercial Perspective
This may also be a game-changer in the commercial litigation sphere, where commercial actions of a related nature are to be raised. It should be noted, though, that the Rules provide for “persons”, as opposed to commercial entities, becoming party to group proceedings.
The Future of Group Proceedings
It is perhaps surprising to litigators and readers that this change has only recently come into force. This is clearly an encouraging move for many, though, and the team at Alba Claims wait with interest to observe upcoming judgements which will indicate how exactly the rules will work in practice.
