SCOTLAND Trends and Developments Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
Trends in Scotland and globally The trends in Scotland are generally in line with trends across the UK and globally. As group procedure continues to evolve in Scotland, the most common types of claims to date have related to consumer protection and product liability matters, dominated by the diesel emissions actions. We have also seen two separate sets of group proceedings raised by historic sexual abuse victims (the Celtic PLC Group Proceedings (COS-GP2-22) and the Krishna Singh Group Proceedings (COS-GP10-25)). In James Finlay , the claims were raised by mass groups of cur- rent and former employees in relation to alleged unfair working practices and seeking to litigate in the UK in respect of claims against the subsidiary company’s actions in Kenya. In terms of global trends, ESG issues are increasingly driving mass claims. In particular, there has been a global rise in climate change and greenwashing cas- es (often backed by activist organisations). An area which is currently undeveloped in Scotland, but which is emerging as a hot topic elsewhere, is in relation to data and technology-driven claims. This is an area where we might start to see litigation in Scotland too, either as an alternative to or in addition to similar litiga- tion taking place in other UK jurisdictions. Possibly the reason for not seeing these categories of claim to date is because consumers are participating in existing liti- gation in England and Wales, or before the CAT. How- ever, this may change if we see a divergence in terms of opt-out procedure becoming generally available for civil claims in Scotland. We are perhaps some way off yet but in due course, we anticipate claims relating to AI liabilities (for example, algorithmic harms) will begin to emerge in the class actions sphere, including potentially in Scotland. Whilst the implementation of the EU Representa- tive Actions Directive (RAD) is spurring the growth of class action mechanisms across Europe, this does not apply in Scotland due to Brexit. The RAD came into force on 24 December 2020, following years of discussions at EU level. Its introduction was driven by a view that not many EU member states had adequate regimes for collective claims by consumers.
bar to granting permission or appointment of a rep- resentative party. Bell (another diesel emissions case) reaffirmed the approach to the “gateway” tests of: (i) suitability of the representative party; and (ii) permission to proceed, cementing the approach taken in Mackay and Milli- gan . The court in Bell held that technical objections by defenders (such as challenges to the structure of pleadings) will not easily defeat group procedure applications. Overall, the court described the climate for defenders seeking to have group procedure appli- cations refused at the permission stage, as “a some- what bracing one”. However, the court has been willing to draw some lines in considering whether to grant applications to proceed as a group. In Donnelly , the proposed repre- sentative party applied to bring group proceedings on behalf of 17 individuals who alleged defect in hernia mesh products. Whilst the court accepted that Ms Donnelly was a suitable representative party, it found that the claims lacked sufficient commonality and also that group procedure would not be more efficient than raising individual actions. The court addressed the issue of whether existing case management tools could serve as a more appropriate alternative to group procedure under Chapter 26A. The court’s reasoning on this point was central to its refusal to grant permis- sion for group proceedings, and included the failure of the applicant to set out a more developed route map of the claims. This is the first reported group pro- ceedings case where the court has refused to grant permission to proceed. Most recently, in the parallel diesel emissions cases Batchelor and Mackie , the court confirmed that in group proceedings, the summons (ie, the initiating court document) need only provide a summary of the circumstances giving rise to the claim. Although fact-specific to the allegations of fraud in that case, the court considered that it would be impractical to expect the representative party to prepare pleadings for a large number of claimants and include the same level of detail that would typically be expected in indi- vidual cases. As such, a summary of the general cir- cumstances is enough to provide fair notice.
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