Navigating Group Proceedings in Scotland

• Group Proceedings allow multiple individuals to come together to bring claims against a defending party provided that certain requirements are met, including that the claims are united by shared harm or legal issues.
• Group Proceedings are a well-known concept throughout the world and are a key feature of the American legal system. The concept in the US is referred to as ‘class action’ procedure.
• The landscape in the US ‘class action’ system has largely informed the approach in the UK, although the UK has sought to adopt lessons from overseas while avoiding some of the perceived excesses of the US system. Despite important differences in the respective rules and procedures, developments elsewhere often give a useful indication of the types of claims and funding models that may emerge here.
• In Scotland, these actions are governed by Chapter 26A of the Rules of the Court of Session and are exclusively heard in the Court of Session.
• These rules have had a significant impact for businesses, as claimants can now group together, supported in some instances by litigation funders, to progress substantial claims.
• We are witnessing a continuing trend of Group Proceedings being raised in the automotive sector, particularly emissions claims, as well as in personal injury and data-related contexts.
• It is worth noting that, while Group Proceedings are still relatively new in Scotland, similar procedures have existed in England and Wales for more than 25 years, particularly in relation to mass tort, mis-selling and product liability actions.

• To initiate Group Proceedings, there must be at least two individuals whose claims are identical, similar, or connected. Crucially, the group requires a Representative Party (RP) to lead the charge.
• The RP can be one of the individuals or even an external organisation, such as a consumer body or public interest group.
• At present, individuals must opt in to join the group in Scotland. This means they must actively choose to participate in the proceedings. However, this may change. The Scottish Civil Justice Council has established a working group and is considering whether the Rules of the Court of Session should also provide for “opt-out” proceedings. There is recent polling research to suggest strong public support for the introduction of opt out collective legal claims, where eligible claimants are automatically included in a case unless they choose to withdraw.
• That issue matters. Experience elsewhere in the UK suggests that procedural design can have a significant effect on litigation volumes, costs and settlement pressure. For businesses, any future move to an opt-out model in Scotland would therefore be a material development to watch closely.

Before the case begins, the court must approve the RP and grant permission for the group action to proceed. Issues that the court will consider include:

• Suitability of the RP: including the RP’s own interest in the proceedings and whether it has the competence, expertise, and financial resources to represent the group.
• Evidence: does there appear to be enough evidence to justify the claim?
• Commonality: do the claims share at least one factual or legal issue?
• Efficiency: would group litigation be more effective than individual claims?
• Prospects of success: is there a real chance of the group’s claim succeeding? 

Once permission is granted, the case proceeds under Chapter 26A of the Rules of the Court of Session. 

The Scottish courts have generally applied a relatively low threshold at the permission stage. The focus is on whether there is a serious question to be tried and whether the use of Group Proceedings is an appropriate and efficient procedural vehicle. That said, the court will still look carefully at how the proposed group issues are defined and whether the proceedings can be managed fairly and proportionately. 

• Financial Exposure: the cumulative value of claims can be very significant.
• Reputational Damage: media attention can dent your brand, even if you win.
• Legal Costs: defending multiple claims requires substantial resources and there is the possibility of irrecoverable expenses in personal injury claims due to qualified one-way costs shifting.
• ‘Floodgate’ Risk: an adverse ruling could open you up to a myriad of similar claims.
• Regulatory Scrutiny: group actions often attract the attention of regulators.
• Operational Disruption: litigation can divert focus from your core operations.
• Settlement Pressure: publicity and scale may push businesses to settle, even with a strong defence.
• Third-Party Funding: litigation funders have opened up the potential for claims to be pursued where they may not previously have been brought due to cost concerns. 

It is also important to view Scottish Group Proceedings in the wider UK context. Mass claims are increasing across a number of forums, and funding models continue to develop. Even where the Scottish procedure remains opt-in, claimant firms and funders are increasingly sophisticated in identifying and coordinating large groups of claims.

Donnelly v Johnson & Johnson Medical Ltd [2025] 

• 2025 saw the first decision under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 where permission to bring Group Proceedings was refused.
• Seventeen individuals alleged injuries arising from the use of hernia mesh products manufactured by the defender. The claims were based on alleged defects under the Consumer Protection Act 1987 and common law negligence.
• The court approved the applicant as a suitable representative party, noting the low threshold for such authorisation.
• However, permission for Group Proceedings was refused. Group Proceedings were deemed less efficient in this case, than individual claims due to the small number of cases, product diversity, and fact-specific issues like the legal time limits for bringing a claim.
• The court emphasised the importance of defining group issues in detail to ensure efficient case management, which had not been adequately achieved in this instance. 

Batchelor v Opel Automobile [2025] 

• This decision in early 2025 addressed the powers of the court to order the disclosure of documents pursuant to the Group Proceedings rules.
• The court affirmed that the court possess wide, flexible and expansive powers in respect of document disclosure in Group Proceedings rejecting submissions that the court’s powers were constrained by the powers of the court to grant commission and diligence. However, the court emphasised that in exercising these powers, it is necessary to take into consideration the requirements of proportionality, confidentiality and feasibility.
• The court also emphasised that the document discovery process should not be used as a fishing exercise or to circumvent the requirements in respect of sufficiency of pleadings (making sure the claim includes enough detail and evidence).

Milligan v Jaguar Land Rover [2025] 

• Around 6,500 individuals alleged the use of unlawful defeat devices in Jaguar Land Rover vehicles.
• Whilst the RP did not have any special ability or expertise, it was sufficient that the legal representatives and funders did have such characteristics.
• This case highlighted there is not a high test when considering whether the applicant has demonstrated a prima facie case and reasonable prospects of success at the permission stage.
• Jaguar Land Rover have had their Permission to Appeal to the Supreme Court refused.

Mackay v Nissan and Renault [2025] 

• Around 8,500 indivduals alleged losses from prohibited defeat devices in Nissan and Renault diesel vehicles.
• Applications were made for Group Proceedings and RP authorisation, with objections raised on RP suitability and group diversity.
• The court upheld the RP’s suitability, emphasising people can get help from the courts when they need it (access to justice) and efficient case management.
• The low threshold for permission was reaffirmed, requiring only a serious question to be tried. The statutory test did not require the issues for resolution in Group Proceedings to be identical in the case of every group member; they had to be similar or related to each other. 

Campbell v James Finlay (Kenya) Limited [2023]

• Over 1,000 Kenyan tea workers sought to bring claims in Scotland against their employer, James Finlay (Kenya) Limited, for unsafe working practices causing musculoskeletal injuries. James Finlay appealed the decision to allow the case to proceed in Scotland rather than Kenya. The reason that a claim was potentially able to be brought in Scotland was because the employer was a company registered in Scotland. The Inner House partially upheld an appeal, pausing proceedings in Scotland pending resolution of claims in Kenya under Kenyan law.
• The case demonstrates the appeal of the Group Proceedings process in Scotland to bring large scale personal injury claims.

• A number of Group Proceedings are now before the Court of Session. These include multiple automotive emissions claims, as well as proceedings relating to alleged historic abuse and a data breach claim arising from the EasyJet cyber-attack. The existing cases underline that Group Proceedings are no longer exceptional in Scotland and are becoming an increasingly established part of the litigation landscape.