SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
Competition Appeal Tribunal Scotland also has a formal class action mechanism by way of the collective proceedings procedure in the CAT which has UK-wide jurisdiction. Prior to 31 July 2020, this was the only formal class action mechanism in the jurisdiction. 3.2 Overview of Procedure The court rules were drafted in intentionally broad terms to form a framework for only the essential pro- cedural elements that are required to enable group proceedings to operate effectively in the court. This is to allow for flexibility and efficiency in individual cases. Given the absence of detail in some respects of the court rules, judicial guidance through case law has been, and will continue to be, necessary. The initial stages of procedure can be summarised as follows. Commencing an Action To commence group proceedings, claimants must serve on the defender(s): • a draft of the summons (the claim form) through which they propose to institute proceedings; • a group register containing the claimants and other relevant information; • an application for permission to appoint a repre- sentative party; and • an application for permission to bring group pro- ceedings. Once served, parties enter the permission stage where the court decides whether to authorise the appointment of a representative party (the individual or entity authorised by the court to bring and manage the litigation on behalf of a group of claimants), and whether to authorise the bringing of group proceed- ings. These two stages are interlinked but sequential with the application for appointment of a representa- tive party being determined first. Appointment of a Representative Party To successfully appoint a representative party, it must be shown that the proposed person or entity is a suit- able person. The court should consider: • the applicant’s interest in the proceedings; • their special abilities or relevant expertise;
group proceedings in respect of musculoskeletal inju- ry arising from their employment ([2022] CSIH 29 and [2022] CSOH 12). In Michelle Donnelly v Johnson & Johnson Medical Limited [2025] CSOH 77, whilst it was accepted there was a prima facie case (and it therefore met the low bar for a merits assessment), the court found that commonality was not clearly established as the claims involved multiple different hernia mesh products with potentially distinct failure modes and injuries which required individual assessment. Also, on the efficiency test, the court was not persuaded that group proceed- ings were more efficient, especially given the small number of claimants (17) and the complexity of indi- vidual prescription and limitation issues. 3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions Group Procedure in the Court of Session Group proceedings must be initiated in the Court of Session, which is Scotland’s highest civil court. The legislative and procedural framework is designed to accommodate a broad spectrum of claim types. Aside from establishing a few core requirements, the 2018 Act is facilitative in nature, leaving much of the pro- cedural detail to be governed by the court rules. As stated in 2.1 Collective Redress and Class Action Legislation , the procedural rules are set out in Chap- ter 26A and should be read alongside Practice Note No 2 of 2020. Informal Case Management Mechanisms See 2.1 Collective Redress and Class Action Leg- islation . Scotland’s courts (in particular, the Court of Session) also have various case management tools which can be deployed in order to run individual but related actions together in a more efficient manner. This is separate to the formal group procedure mechanism described above.
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