SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
• whether they are independent from the defenders; • their ability to act fairly and adequately in the inter- ests of the group; and • their competence to litigate, including financial resources to meet potential expenses. Application for Permission The applications for permission can be opposed by the defender(s). Time is provided for answers to the applications to be lodged with the court. This will usu- ally result in a hearing on the applications at which the court must decide, based on criteria provided in the rules, whether permissions should be granted. Test for Permission Application See 2.3 Definition of Collective Redress/Class Actions . When deciding whether to grant permission to bring group proceedings, the court must be satisfied that the proposed proceedings raise issues of fact or law that are the same or similar across the group. The court may also consider whether the applicant has demonstrated a prima facie case and whether the proceedings have a real prospect of success. This is a low-threshold, discretionary test and the court will not conduct a full hearing on the merits at this stage. The court may also consider whether it is more efficient administration of justice to bring the claims as group proceedings rather than as individual proceedings. Procedure Beyond Initial Stages Chapter 26A of the court rules and accompanying Practice Note No 2 of 2020 contain some detail on the next stages of procedure including the form of pleadings, documentary evidence and substantive hearings but overall the court is expected to take a pragmatic and flexible approach beyond the permis- sion stage. There is uncertainty about how the court will approach and resolve the claims of individual group members/claimants which form part of the group and no group proceeding has yet reached that stage. Legal practitioners and litigants in Scotland are watching with interest as more cases continue down the procedural track and judicial guidance is received on these issues.
For completeness, the following is worth mention- ing: (i) the availability of more informal case manage- ment tools which can be deployed in situations where multiple individual actions raise similar issues and (ii) that the Competition Appeal Tribunal has jurisdiction across the whole of the UK in respect of competition law matters (see 2.1 Collective Redress and Class Action Legislation ). 3.3 Standing Group proceedings in the Court of Session must be brought by two or more natural or legal persons who have claims which are the same as, similar, or related to one another. The group must be led by a represent- ative party who is authorised by the court. The repre- sentative party may either be a member of the group (ie, one of the claimants) or an external party or body, such as a trade union or consumer organisation. In some cases, the court has authorised third-party sen- ior counsel to act as the representative party. When deciding whether an applicant is a suitable person to act as the representative party, the court should con- sider the factors listed in 3.2 Overview of Procedure . The rules surrounding the appointment of a represent- ative party have been the subject of judicial interpreta- tion, most recently in the decisions in Joseph Mackay v Nissan Motor Co Ltd and Others [2025] CSIH 14 and Steven Milligan v Jaguar Land Rover Automotive Plc and Others [2025] CSIH 16. In those cases, the court emphasised the absence of disqualifying factors as the key consideration when considering authori- sation of a representative party, rather than requiring the presence of specific positive attributes. 3.4 Class Members, Size and Mechanism – Opting In or Out There is no upper limit to the number of group mem- bers in Scottish group proceedings. Group members can bring joint proceedings if the proceedings raise issues (of either fact or law) which are the same as, similar to, or related to one another. The 2018 Act enables the Court of Session to provide for both opt-in and opt-out proceedings but, so far, only opt-in proceedings are permitted by the court rules. The 2018 Act provides for review by the Scot- tish Ministers as soon as reasonably practicable after
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