SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
als with similar legal claims must actively choose to participate in the litigation). During the first parliamen- tary debate in January 2018, some argued that opt- out procedures (where all individuals who fall within the scope of the proposed class definition are auto- matically included in the group unless they expressly choose to opt out) should also be allowed. This sup- port relied in particular on points made by consumer group Which? about improving access to justice. The opt-out model has gained in popularity interna- tionally, 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 pro- visions for opt-in procedure have been implemented so far. It is understood that the decision to only intro- duce 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 proce- dure for group proceedings set up quickly. The opt- out provisions remain in the legislation and require only new court rules, and not new primary legisla- tion, for their implementation (see further in 3.4 Class Members, Size and Mechanism – Opting In or Out The 2018 Act provides a framework for group pro- ceedings in Scotland. This framework is supplement- ed 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. and 4.1 Policy Development ). Implementing the 2018 Act 1.2 Basis for the Legislative Regime, Including Analogous International Laws The legislative regime in Scotland is not expressly declared to be based on any regime in any other jurisdiction or forum. However, there are similari- ties 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 sim- ilar 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, particu- larly 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 selec- tion of those elements considered most desirable from other jurisdictions were included in the draft legisla- tion. 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 fol- low 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 Rep- resentative Actions. GLOs act as a wrapper around individual claims. In contrast, Scotland’s group pro- cedure 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 rel- evant 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 pro- cedure. 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 pro- gressed far enough on the procedural track to estab- lish how this will apply in practice. In Bridgehouse , it was also noted that a representative action is a pro- cedure 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).
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