SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
1.3 Implementation of the EU Collective Redress Regime This is not applicable to Scotland, although it is dis- cussed in the Scotland Trends & Developments chap- ter in this guide. 2. Legal Framework 2.1 Collective Redress and Class Action Legislation 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 frame- work encompasses only the essential procedural ele- ments 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 oth- ers were sisted (paused/stayed). Sometimes the court can issue special instructions called “Practice Direc- tions” 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 collec- tive 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 Col- lective Proceedings Order being brought before the CAT by affected claimants seeking what are known as follow-on damages. It is also possible to bring stan- dalone 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 ). 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 relat-
257 CHAMBERS.COM
Powered by FlippingBook