Class action litigation is often thought of within the context of the American Legal system, where damages in Class Action Litigation can reach millions, or even billions, of dollars. They are also a feature of the English Legal System, notably with the ongoing High Court case against Volkswagen Group in the wake of the emissions scandal.
Until now there was no provision in the Scottish Courts for multiple Pursuers to bring similar claims against the same Defender in a single action. The Civil Litigation (Expenses and Group Proceedings)(Scotland) Act 2018 permitted class actions (known as group proceedings in Scotland) such as those seen in other jurisdictions to be brought in Scotland.
The Scottish Civil Justice Council Established a Working Group in March of this year to finalise the mechanics of the new group proceedings. The finalised Court Rules in relation to the proceedings have now been published with the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020, which comes into force from 31st July 2020.
Lord Carloway, the Lord President and Chair of the Scottish Civil Justice Council (SCJC), said: “The Council has worked very hard to ensure that the new rules will be flexible and enable group proceedings to proceed efficiently in the court, saving time and money. The Council has focused on making the rules as straightforward as possible for those individuals who will benefit from the new procedures.”
The new group proceedings will only be available in the Court of Session. Therefore, for claims in excess of £100,000.
To raise group proceedings there must be:
- two or more pursuers
- a single issue or a number of issues which are common to all the possible claims
The proceedings will take place on an “opt in” basis, where all the members of the group give their express consent to proceedings being raised. A successful outcome in the group proceedings could not be relied upon by anyone who had not opted into the action.
The legislation does not limit the type of claim that can be brought in group proceedings. In other jurisdictions, class action ligation covers a broad variety of claims from product liability, data breaches, large-scale accidents and employee rights.
The impact of these new group proceedings on Civil Litigation in Scotland will be determined after the first few cases are brought before the Court of Session. Although, it is clear that this new procedure sees a shift in the balance of power been individual Pursuers and larger Corporate Defenders within the Scottish Court System.