SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
So far, while the possibility of seeking caution has been discussed at a number of procedural hearings, no party has sought caution in group proceedings. Awards of Expenses (Costs) In Scotland, expenses are typically awarded to the successful party in the litigation. Interim awards of expenses can be made for different parts of procedure as cases progress, for example, if a party success- fully opposes a motion (ie, an application to the court), they may be awarded the expenses associated with it. Expenses are awarded at the discretion of the court. 3.10 Disclosure and Privilege Disclosure At the permission stage, the claimant group must pro- vide all relevant documents in the applicant’s posses- sion which are “necessary for the court to determine whether or not to give permission”, as well as any documents referred to in the pleadings. In Scotland, parties are not under a general duty of disclosure unless ordered by the court or the parties agree to disclose evidence voluntarily. Even where a court order is made, disclosure is generally provided on a narrow and targeted basis with reference to a list of documents or specified categories of evidence. The court assesses whether the requested evidence is relevant and material to the case before granting an order. Recovery can also be ordered from third parties. It would appear that similar principles will apply in respect of group proceedings, though Chapter 26A of the court rules provides a wide basis for recovery of documents (in a similar manner to specialist commer- cial and intellectual property actions before the court). The rules enable the court to order disclosure of the existence and nature of documents “relating to the proceedings” and to grant authority for the recovery of documents either “generally or specifically”. There is extensive discussion about the basis of disclosure in group proceedings in David Brian Batchelor v Opel Automobile GMBH & Ors [2025] CSOH 18. Confidentiality and Privilege Where the provider of documents wishes to claim con- fidentiality (eg, on the basis of commercial sensitivity or legal privilege) over any or all of the documents
being disclosed in Scottish litigation, a specialist pro- cedure can be invoked to consider such documents outside of the main proceedings and restrict their dis- closure in appropriate cases. It is expected that the same (or a similar) procedure would be available in the context of group proceedings specifically. Legal privilege in Scotland applies fully to group pro- ceedings and serves as a critical safeguard for with- holding relevant confidential communications from disclosure. There are two main types of privilege: legal advice privilege and litigation privilege. Legal advice privilege protects confidential communications between a lawyer and their client made for the pur- pose of seeking or giving legal advice, regardless of whether litigation is anticipated. Litigation privilege, on the other hand, covers confidential communications between a lawyer/client/third party, provided they are created for the sole or dominant purpose of obtaining information or advice in connection with the conduct of existing or reasonably contemplated litigation. 3.11 Remedies All remedies available to claimants in Scottish court proceedings generally are also available in group proceedings. The most commonly sought remedy is damages but proceedings seeking interdict, declara- tor or specific implement are possible. • In cases of delict (tort), the remedies available are designed to compensate the injured party and restore them, as far as possible, to the posi- tion they would have been in had the delict not occurred. • In claims of breach of contract, the law seeks to place the claimant in the position they would have occupied had the contract been duly performed. The remedies available will depend on the specific contractual term that has been breached. A claim- ant may be entitled to compensation for financial losses resulting from the breach, and may also pursue an order requiring the defendant to perform the contractual obligations as agreed. • Claimants in Scotland can seek interim remedies, including interim interdict (injunction).
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