SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
Pinsent Masons LLP 30 Crown Place Earl Street London EC2A 4ES United Kingdom Tel: +44 20 7418 7000 Web: www.pinsentmasons.com
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime 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 Scot- tish 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 dedi- cated 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 proce- dure regime is also intended to make the court sys- tem more efficient by reducing duplication of effort and court time. According to the Policy Memorandum for the Civil Litigation (Expenses and Group Proceed- ings) (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 effi- cient. 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 responsibil- ity on the part of businesses and thereby to protect and strengthen the rights and interests of consumers. Facilitating an efficient and effective means of collec- tive 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 Pro- ceedings) (Scotland) Bill was introduced in the Scot- tish Parliament in 2017, it only included an opt-in model for group proceedings (that is where individu-
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