SCOTLAND Trends and Developments Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
Scottish Civil Justice Council (SCJC), the statutory body responsible for introducing new draft court rules for formal approval. On 24 October 2025, the SCJC announced a call for evidence in relation to group pro- ceedings, with a particular emphasis on opt-out group proceedings (discussed in more detail below). If new court rules implementing opt-out procedure are ulti- mately introduced, Scotland would become the first UK jurisdiction to offer a general right to opt-out class actions, beyond the realm of competition law matters. The opt-out regime in the UK’s Competition Appeal Tribunal (CAT), which extends to Scotland, continues to dominate the UK mass actions landscape by claim value. Prior to 31 July 2020, the CAT was the only for- mal group/class action mechanism in Scotland. The CAT has taken a permissive approach to determining which cases fall within the scope of competition law and therefore its jurisdiction. It will be interesting to see whether there is any shift away from this direction if opt-out procedure is introduced in Scotland. A flexible framework of court rules The relevant court rules found in Chapter 26A of the Rules of the Court of Session and accompanying Practice Note No 2 of 2020, are intended to provide a flexible framework for group proceedings. They do not provide prescriptive detail for all stages of proce- dure. A guiding principle from the most senior judge in Scotland is that the group procedure court rules “should be seen as the servants of the court and not as its masters” (per Lord Pentland, Lord President, in Jospeh Mackay v Nissan Motor Co Ltd & Ors [2025] CSIH 14 at [10]). There is therefore a balancing exer- cise to be carried out between ensuring the procedure both sufficiently flexible and certain. Since group procedure was introduced in 2020, there has been a steady but slow trickle of actions raised but the number is still less than 20 and most cases to date have stalled or settled somewhere along the procedural track. No case has yet proceeded through the entire court process to trial and final judgment. Nonetheless, early-stage judicial guidance is begin- ning to clarify how the procedure operates in practice. However, one area of procedure which is still lack- ing notable detail is the ultimate resolution of claims. There remains significant uncertainty on how the indi-
vidual claims which form part of the group procedure, raised in the name of the representative party, will be resolved judicially. Recent guiding judgments As the new group procedure has gained momentum in Scotland over the past five years, recent judgments have provided much needed judicial guidance on the interpretation of the rules around permission to proceed (the permission stage), the role of the repre- sentative party, and the court’s approach to funding and procedural objections. Until 2025, the newness of the procedure meant that there was a lack of judicial experience and judgments in relation to the applica- tion of the group procedure. More recently, the diesel emissions cases have led to a significant acceleration in judgments addressing procedural issues. 2020–2024 In this period, the most significant cases were: • Thompsons Solicitors Scotland v James Finlay (Kenya) Ltd [2022] CSOH 12, Hugh Hall Campbell KC v James Finlay (Kenya) Ltd [2022] CSIH 29 and [2023] CSIH 39; and • Lee Bridgehouse v Bayerische Motoren Werke AG [2024] CSOH 2. In James Finlay , a group of Kenyan tea plantation workers raised an action against a Scottish-regis- tered company for musculoskeletal injuries allegedly sustained during employment in Kenya. A number of procedural hearings have taken place so far, including to authorise the proposed representative party for the group; for permission to bring group proceedings and in relation to jurisdiction. In this case, the representative party initially proposed was the firm of solicitors instructed by the group. The court refused to authorise the firm’s appointment as representative party, stating that it was preferable to maintain a distinction between a party and its advis- ers. The subsequently proposed representative party, a former Kings Counsel (barrister), was approved. The defender also opposed the application for permission to bring group proceedings, arguing that the claims of the employees are not “the same as, or similar or related to, each other” but the court rejected this chal-
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