SCOTLAND Trends and Developments Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
Conclusion Looking ahead – the next five years of group procedure in Scotland Five years since the introduction of group procedure in Scotland, the courts have adopted a permissive yet pragmatic approach, guided by the policy aims of the 2018 Act: improving access to justice and enabling the efficient resolution of mass claims. As cases have progressed along the procedural track, judicial guidance has begun to clarify the framework of group proceedings, particularly around permission to proceed and the role of the representative party, although there remain significant questions around the resolution of individual claims, including the calcula- tion and enforcement of damages. The SCJC’s ongoing review, and the Group Procedure Working Group, present an opportunity to refine and potentially expand the procedure over the next five years. The potential introduction of opt-out proceed- ings could be pivotal in shaping the next five years of group procedure in Scotland, positioning Scotland as the first UK jurisdiction to offer general opt-out class actions beyond competition law. Furthermore, with global trends in ESG litigation, data privacy and AI- related harms on the rise, the scope of group proceed- ings may widen significantly.
The next five years are likely to be pivotal. With the legislative foundation in place, growing judicial experi- ence, and increasing interest from funders and claim- ants alike, it is hoped that group procedure in Scotland will be able to move from cautious adoption to more confident maturity. However, the procedure remains in its infancy – no group has yet progressed to final judg- ment after an evidential hearing, and there remains a lot to be learned and challenges to be addressed as cases continue to progress through the procedure for the first time. It is hoped that the procedural frame- work will evolve in a way that balances flexibility, fair- ness and efficiency, and that Scotland can emerge as a leading forum for collective redress.
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