SCOTLAND Trends and Developments Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
While there are some similarities between the Scottish regime and the framework required of EU member states under the RAD, there are also notable differenc- es. For instance, whilst in most types of cases Scot- tish courts typically follow the “loser pays” principle on costs, this is now subject to the recent introduction of qualified one-way costs shifting in personal injury cases, meaning genuine claimants who lose such actions should generally not be liable for the defend- er’s costs. However, there remains no straightforward mechanism for exiting litigation where a weak claim is pursued. Another key distinction lies in the RAD’s requirement that proceedings be initiated by a “qualified entity”. Under Scotland’s new group proceedings procedure, the representative may – but need not – be a trade or consumer organisation and is most commonly sim- ply one of the individual claimants. Additionally, Scot- land’s disclosure rules are more limited than those in some other jurisdictions. Litigation funding While litigation funding is permitted in Scotland, the market remains comparatively underdeveloped in contrast to the booming market in England. The lower volume and value of litigation in Scotland is not on the same scale as in England, and may fall short of the thresholds required to bring larger litigation funders on board. However, the advent of group procedure does open more opportunities for the funding mar- ket, with claimants in group proceedings making use of third-party funding. Post-PACCAR reforms and the pending Civil Justice Council review in England and Wales are likely to have some degree of impact in Scotland, at least as a stimulus for further discussion in this jurisdiction. The legislative provision for litigation funding is found at Section 10 of the 2018 Act, specifically in relation to the disclosure of funder information during the course of proceedings and the funder’s potential liability for expenses (costs) – but this provision is not yet in force. While there is no indication of when this provision might be implemented, it will be very interesting to see developments in the Scottish funding market once it is brought into force. The 2018 Act also provides a statutory footing for alternative fee agreements such
as damages-based agreements and speculative fee agreements which are particularly popular in personal injury cases. SCJC Group Procedure Working Group The SCJC has recently established a Group Proce- dure Working Group, initially tasked with carrying out an informal consultation on the operation of the procedure amongst practitioners. Now that judicial and practitioner experience of the procedure has increased and there have been several guiding judg- ments on the approach to the rules, it is an appropri- ate time to assess how the current opt-in procedure is working in practice. A key part of the Working Group’s remit is also to consider whether to extend the existing Chapter 26A court rules to cover an opt-out option. As noted, 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. The call for evidence closes on 23 January 2026 and, depending on the outcome, may lead to a public consultation on the detail of new draft court rules. In light of the fact there is already a legislative basis for opt-out procedure in the 2018 Act, subject to the response to the call for evidence and any subsequent consultation, there appears to be a prospect that opt-out procedure will be introduced in Scotland in the relatively near future. Any changes are likely to take some time to come into effect – per- haps a year or longer – but by 2026 it should be clear whether or not opt-out procedure will be introduced in Scotland. The Working Group is also expected to consider how group procedure interacts with broader civil justice reforms, in particular open justice. This exercise may be tied to the statutory obligation under Section 23 to review the relevant provisions of the 2018 Act now that the provisions have been in force for five years. The outcome of these considerations, in particular any decision to introduce opt-out procedure, has the pos- sibility of changing the direction of class actions in the UK and is likely to be watched with interest.
271 CHAMBERS.COM
Powered by FlippingBook