UK - Scotland
A Scottish class action procedure, known as 'group procedure', was introduced on 31 July 2020. The procedure is an opt-in procedure and is only available in the Court of Session. It is governed by chapter 26A of the Court Rules. It allows two or more parties to bring joint proceedings if their claims raise issues of either fact or law which are the same as, similar, or related to one another.
Group proceedings are commenced by the preparation and service upon the defender of:
- a Summons (the initiating document setting out the claim);
- a Group Register identifying the claimants; and
- applications to the court for permission to bring group proceedings and for one of the claimants to be the representative party.
Service of the Group Register on the defender stops the clock in terms of time bar. However, certification of the action as a group action and certification of the representative party by the court are required to commence the action at court.
There are no restrictions as to the:
- Type of conduct or cause of action as grounds for group proceedings;
- Type of civil claim which may be brought under group procedure, although to date the procedure has been used to litigate ESG related claims, consumer rights claims and personal injury claims;
- Type of remedies available to claimants, although damages has been the most prevalent remedy sought so far; or
- Nationality or domicile of claimants. The same rules on jurisdiction will be applied as in regular Scottish court proceedings.
However, jury trials and punitive or exemplary damages are not available for group proceedings in Scotland.
Once a group action has been commenced a designated judge will be appointed. He or she will manage the case and have considerable discretion as to the best way of progressing it to a final hearing.
The Rules allow additional members to be added to the Group Register once the action is underway. A revised Group register must be lodged at Court and served on the defender, and notification of the changes given to all existing members, within 21 days.
In terms of settlement the Rules require that the representative party must “consult with” group members on the terms of any proposed settlement. However, in practice there is likely to be a contract in place between group members and the representative party which details how settlement decisions are to be taken.
Appeals can be made against any final order made by the court to the Inner House. The decision whether to appeal a final order or not is likely to be made on a collective basis for the reason outlined in the preceding paragraph.
Finally, the normal rules on costs apply to group proceedings in Scotland. Expenses typically follow success except in personal injury and fatal claims, where qualified one-way cost-shifting applies (the court will not make an award of costs against an unsuccessful claimant unless the litigation has been conducted inappropriately).