SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
2.3 Definition of Collective Redress/Class Actions A person (a “representative party”) may bring group proceedings in the Court of Session on behalf of two or more persons (a “group”) each of whom has a sep- arate claim which may be the subject of civil proceed- ings. The representative party must be authorised to act as such by the court. Group proceedings may also only be brought with the court’s permission. There are three core elements to this permission set out in the 2018 Act and the supporting court rules. These can broadly be described as an overriding commonality test, together with discretionary tests on merits and efficiency. Commonality Test As provided for in Section 20 (6) of the 2018 Act, the court will only grant permission for the action to pro- ceed if it considers that: • all of the claims made in the proceedings raise issues (whether of fact or law) which are the same as, or similar or related to, each other; and • if it is satisfied that the representative party has made all reasonable efforts to identify and notify all poten- tial members of the group about the proceedings. Merits and Efficiency Tests The court rules state that an application for permission may be refused where it has not been demonstrated that: • there is a prima facie case (ie, a serious question to be tried); • it is a more efficient administration of justice to bring the claims as group proceedings rather than as individual proceedings; and/or • the proposed proceedings have real prospects of success. Application of the Tests by the Court Until relatively recently there had been limited guid- ance on how the courts will interpret these require- ments. However, there is now a steady stream of cases which suggest a permissive approach. Detailed consideration was given to this issue in The James Finlay (Kenya) Ltd Group Proceedings where a group of Kenyan tea pickers have been permitted to advance
ing to vehicle diesel emissions in respect of which there are currently several group proceedings running before the Scottish court. There have also been claims relating to historic sexual abuse ( The Celtic PLC Group Proceedings COS-GP2-22 and The Krishna Singh Group Proceedings COS-GP10-25) and personal injury claims by former/current employees ( The James Finlay (Kenya) Ltd Group Proceedings COS-GP1/22). With the exception of one set of group proceedings initiated by a consortium of housing authorities con- cerning alleged construction defects, the cases so far have generally not involved a commercial litiga- tion subject matter. Competition Law Matters Competition matters fall to be dealt with by the CAT, which has jurisdiction in Scotland as one of the UK nations (including Scotland). As noted in 2.1 Collective Redress and Class Action Legislation , Section 47B of the Competition Act 1998 provides the legislative basis for collective proceedings before the CAT. The basis of the claim must relate to an infringement of UK competi- tion law (or, in more limited circumstances, EU compe- tition law where the infringement was pre-Brexit or is retained law in the UK). The intention of the regime is to make it easier for consumers (including businesses) to seek redress where they have suffered loss because of a breach of competition law. Generally, the CAT has taken a broad view of what is within its remit. There are two types of collective actions that can be brought before the CAT: follow-on and standalone. Follow-on actions arise when a competition author- ity, such as the Competition and Markets Authority or the European Commission, has already investigated and found a breach of competition law. In contrast, standalone actions are initiated independently of any prior regulatory investigation, meaning the alleged infringement has not yet been formally examined or determined by a regulator. Two recent examples of matters before the CAT are: • Merricks v Mastercard [2025] CAT 28, which relates to credit card interchange fees and consumer over- charges; and • Le Patourel v BT [2024] CAT 76, which relates to excessive telephone landline pricing.
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