SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
five years from its commencement. As part of this statutory review process and the work currently being undertaken by the Scottish Civil Justice Council, the practical implementation and detail of opt-out proce- dure is now being actively considered. 3.5 Joinder The opt-in process adopted in Scotland enables additional parties to join group proceedings by being added to the Group Register that is maintained by the representative party. The Group Register is a formal record of all claimant parties who have opted into the proceedings and is lodged with the court. It can be updated on an ongoing basis by the representative party and shared with the court and the defender(s). The Group Register is to be considered by the court at all hearings of the proceedings. The issue of when, and on what basis, the court will close the Group Reg- ister remains to be seen. 3.6 Case Management Powers of Courts The court’s case management powers in group pro- ceedings are wide. The procedure is, in parts, based upon the Court of Session commercial actions model which is designed to provide the court with flexibil- ity and wide discretionary powers to expedite the process. Judges are encouraged to take a proactive approach. Typically, once proceedings are allocated to a certain judge, that judge will deal with the pro- ceedings from start to finish. The judge can order any procedural steps they deem appropriate for the complexity and nature of the case. This has included, for example, the court ordering targeted document recovery and fixing monthly hearings for updates on the progress of disclosure. 3.7 Length and Timetable for Proceedings Estimated Length of Proceedings As group procedure remains in its early stages, and with many cases having either settled or still continu- ing to progress, it is not currently possible to estimate the typical duration of group proceedings in Scotland. It is reasonable to assume that it will take more than a year or two (and most likely longer) from the initia- tion of procedure to receiving judgment following an evidential hearing. The time required will vary depend- ing on the nature and size of the group and the issues to be addressed. However, given that the group pro-
ceedings will often involve large numbers of claimants and complex issues, the time required to resolve will be measured in years. There are appeal rights at vari- ous stages of the procedure (some of which require leave/permission) which might also impact on the timeframe to resolution. Hearings The rules provide that, following the permission stage, once defences have been lodged with the court, a pre- liminary hearing should happen within 14 days. At this hearing, the court can make a variety of orders includ- ing for parties to provide further detail in their pleadings or the provision of a list of witnesses. Thereafter, a case management hearing should be set. At this hearing the court may set down dates for an evidential hearing or a debate (a hearing on legal arguments without hearing evidence). Outside of these prescribed hearings, the court can fix incidental hearings to consider matters such as document production. Untested Parts of the Procedure While courts are expected to actively manage group litigation with an aim to expedite progress, the inher- ent procedural and administrative complexity of these cases is likely to result in longer timelines compared to other cases. The rules remain untested in a number of respects which, at least for the groups currently before the court, adds uncertainty to the procedure and time required to reach conclusion. A key area of uncer- tainty lies in how the court will handle the assessment of damages and the process required to do so and specifically, whether this will fall under the scope of determining “issues (whether of fact or law) which are the same as, or similar or related to, each other”, or be treated as a separate matter. Recent case law has suggested that a single judgment will be issued in sat- isfaction of the claims of all group members. However, further clarification of this part of procedure through either formal rules or judicial interpretation is awaited. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings Case Management in Group Proceedings The court’s broad case management powers include the ability to structure the court timetable in a way that enables proceedings to be dealt with in the most fair and efficient way. This can include continuing (ie,
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