SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
3.12 Settlement and ADR Mechanisms ADR mechanisms, such as mediation, are available to parties upon agreement in group proceedings. This can include informal “without prejudice” correspond- ence or meetings between the parties. Extra-judicial settlement is encouraged in Scottish group proceedings. Parties will be expected to be able to inform the court about the steps that have been taken to date to achieve an extra-judicial set- tlement and the likelihood of such a settlement being achieved at the case management hearing. The court also has the power to order parties to hold a joint meeting with a view to exploring whether settlement can be achieved. The timing of such a meeting will depend upon when the court thinks it is most likely to be productive. 3.13 Judgments and Enforcement of Judgments The nature of judgment and whether any further mechanism for enforcement is required currently remains to be seen. In published judgments the court has described group proceedings as taking the form of a single action brought by the representative party on behalf of group members as a whole, with a view to obtaining a single decree (judgment) in satisfaction of all their claims. However, it is as yet unclear how a sin- gle judgment will be drafted and thereafter enforced in circumstances where different group members may be entitled to different awards of compensation or where individual assessments of liability are required. In proceedings before the CAT, it may be determined that a judgment does not apply to certain sub-classes or specific individuals within the represented group and the judgment would therefore not be binding on them. The representative party is responsible for noti- fying all represented persons of the judgment, using a method approved by the CAT. 4. Legislative Reform 4.1 Policy Development Scottish Civil Justice Council Working Group The SCJC, which is the body responsible for drafting and revising court rules, conducted a targeted review
of the current court rules on group procedure (Chapter 26A) in the summer and autumn of 2025. The respons- es to this review are currently being considered by the SCJC Group Procedure Working Group, with a view to exploring possible rule changes. It is expected that in the immediate future this may lead to small changes to procedural rules rather than wholesale changes to the existing law and procedure. That being said, on 24 October 2025, the SCJC announced a call for evi- dence in relation to group proceedings, with a particu- lar emphasis on whether opt-out group proceedings should be introduced, so the longer-term outlook may Opt-out procedure is permitted in the overarching 2018 Act, though not yet implemented by the court rules and procedure. The SCJC call for evidence on group proceedings closes on 23 January 2026 and, depending on the outcome, may lead to a public con- sultation on the detail of new draft court rules which implement opt-out procedure. However, that process is likely to take some time and due to the relatively controversial nature of opt-out proceedings, it may meet some challenges along the way. involve more significant change. The Future of Opt-Out Procedure It is expected that strong views are likely to be expressed both for and against its introduction. Opt- out procedure is not currently available in any other UK jurisdictions for non-competition law matters. It may spark concerns in the wider business community given the potential for increased exposure to liability and claimants “forum shopping” in alternative jurisdic- tions. There is likely also to be concern that if Scotland introduces an opt-out procedure the pressure to do so in England and Wales will increase. 4.2 Legislative Reform No legislative reforms are anticipated on the immedi- ate horizon. Opt-Out Procedure As noted in 4.1 Policy Developments , it is expected that the next biggest development is to be discus- sions around the introduction of opt-out procedure. There is already legislative authority to introduce this, and it is therefore in the hands of the SCJC to take any next steps in this regard.
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