SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
5. Key Trends 5.1 Impact of Key Trends Categories of Cases
The recent call for evidence by the SCJC is the first step in this process. Depending on the outcome of the call for evidence, it seems likely the SCJC will then commence a targeted consultation amongst practitioners and other relevant bodies (such as the Law Society of Scotland and judicial contacts) and/ or a wider public consultation to consider the specific detail of a new opt-out procedure, before the formal introduction of any new court rules or practice direc- tions. Development of Existing Court Rules One other area where there may be some develop- ment of existing court rules (or at the very least in judicial guidance from existing cases as they make their way through the court process) is in relation to how individual claims/issues within a group proceed- ings action will be considered by the courts (if at all) and ultimately be resolved. Statutory Review Section 23 of the 2018 Act requires the Scottish Min- isters to formally review the operation of group pro- cedure as soon as practicable after the end of five years from its commencement (ie, after 31 July 2025). It seems probable that the work currently being under- taken by the SCJC, a statutory body, is connected to this statutory review process. Funding In relation to funding, Section 10 of the 2018 Act is not yet in force. When it becomes law it will require the disclosure of any third-party funding arrangements in the course of group proceedings. This will improve transparency and may provide more strategic insights into the litigation which may ultimately assist parties with moving towards resolution. Whilst the issue of funding has been discussed in group procedure cases in the context of the proposed representative party demonstrating they have financial resources to meet any awards of expenses, the current position is that in so doing the party does not require to disclose the details of any funding arrangements.
Consumer protection and ESG issues have been largely responsible for shaping group proceedings in Scotland to date. As noted above, the suite of diesel emissions cases currently dominate group procedure. This is reflective of both wider global trends and is also compatible with the policy aims of the 2018 Act which include the promotion of social responsibility on the part of businesses and in doing so, strengthening the rights and interests of consumers. There is a general trend for increasing ESG-related litigation and this is expected to continue in Scotland in the coming years, including in the context of group proceedings. More historic abuse and personal injury cases are expected to be raised as group proceedings, and group pro- ceedings may broaden into other areas such as data security and financial services. Judicial Trends On procedural matters, the court has generally adopt- ed a permissive approach to the initial applications for appointment of a representative party and grant of permission for group proceedings. The practical application of the procedure is also reflective of the pro-consumer policy stance. This trend is expected to continue. In the recent case of Paul Bell v Volvo Car Corporation and Others [2025] CSOH 64, the judge described the climate as now “somewhat bracing” for defenders seeking to have initial applications to allow the group to progress refused, indicating the high hur- dle they would face in making these challenges. A similar stance is taken in respect of defenders mak- ing arguments that there is a lack of fair notice in the pleadings. In the recent cases of David Brian Batch- elor v Opel Automobile GMBH & Ors [2025] CSOH 93 and William Mackie v Mercedes-Benz Group Aktienge- sellschaft & Ors [2025] CSOH 94, the court held that fair notice of the claim can be achieved through a summary of the general circumstances pertaining to the group as a whole, and the same level of detail would not be required as in pleadings for individual cases.
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