SCOTLAND Trends and Developments Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
lenge (both at first instance and on appeal to the Inner House, Scotland’s civil appeal court). It held that if the validity of the claims that musculoskeletal injuries stemmed from common working conditions on the estates is made out, then the generic issues of fact and law will be resolved for the group, leaving only individual causation to be determined. On jurisdiction, there was dispute over whether the more appropriate forum for the case was Kenya or Scotland. This reflects a growing trend of legal chal- lenges in the UK against UK-based companies for harms linked to their overseas operations or supply chains. At first instance, the Scottish court rejected an argument that Kenya was the more appropriate forum on the basis of risk of denial of substantive justice but the defender’s plea of forum non conveniens suc- ceeded in the Inner House. The case is currently sist- ed (paused/stayed) pending the resolution of claims under Kenya’s Work Injury Benefits Act. In the case of Bridgehouse , one of the diesel emis - sions actions, the court provided some guidance on the procedural framework and the criteria for appoint- ing a representative party. The court confirmed the low threshold for suitability as a representative party and clarified that litigation funding and legal assistance can satisfy the “competence” requirement. This is a requirement for the applicant to demonstrate sufficient competence to litigate the claims properly, including financial resources to meet any expenses awards. The court’s commentary regarding comparisons with class actions regimes in England and Wales is also notable. It stated that the English Group Litigation Order pro- cedure does not provide a reliable indication of how the Scottish courts will approach group proceedings. The court in Bridgehouse stated that the English prac- tice of identifying “common issues” is not applicable in Scotland; under English procedure, each claimant pursues an individual claim, whereas in Scotland, a single action is brought on behalf of all group mem- bers. 2025 In the last year, there have been an increasing number of notable cases:
• Jospeh Mackay v Nissan Motor Co Ltd & Ors [2025] CSIH 14 and Steven Milligan v Jaguar Land Rover Ltd [2025] CSIH 16 (parallel cases); • Paul Bell v Volvo Car Corporation & Ors [2025] CSOH 64; • Michelle Donnelly v Johnson & Johnson Medical Ltd [2025] CSOH 77; and • David Brian Batchelor v Opel Automobile GMBH & Ors [2025] CSOH 93 and William Mackie v Mer- cedes-Benz Group Aktiengesellschaft & Ors [2025] CSOH 94 (parallel cases). Mackay and Milligan marked a pivotal stage in the evolution of group procedure when the Inner House had its first opportunity to provide guidance on group procedure. The two diesel emissions cases were run in parallel and the appellate guidance focussed on the two-stage test for bringing group proceedings: (i) the suitability of the representative party; and (ii) permis- sion for the action to proceed. The overall messaging from the case is that there is a very low threshold for determining the suitability of a proposed representa- tive party. Tied to this point, the case emphasised the need to bear in mind the principal policy goals of the 2018 Act, namely access to justice and efficient reso- lution of mass claims. A further policy aim is to pro- mote social responsibility on the part of businesses and thereby protect and strengthen the rights and interests of consumers. The Inner House also confirmed that the statutory test for permission to proceed as a group action did not require the issues for resolution in the group to be identical in the case of every group member, but only to be similar or related to each other. The require- ment to demonstrate a prima facie case requires no more than for it to be shown that there is a case to argue and a case to answer. The additional need to demonstrate that the action has “real prospects of success” means that the prospects must be shown to be genuine as opposed to speculative or fanciful. The Inner House emphasised that the permission stage is a gateway stage only and all substantive issues should be determined at a later stage of proceedings. The Inner House also confirmed that details of any funding arrangement do not need to be disclosed at the permission stage and funding concerns are not a
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