The “group procedure,” or the first official class action method in Scotland, was introduced on July 31, 2020.
The first official class action has been implemented in Scotland in 2020 through the enactment of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the 2018 Act). The 2018 Act provides for both opt-in and opt-out procedures. Notwithstanding, following a brief consultation with the Scottish Civil Justice Committee, the implementation of the opt-out procedure was postponed.
Sections 20 and 21 of the 2018 Act lay forth the fundamental principles of the group process.
A new Chapter 26A was added to the Rules of the Court Court of Session by the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020. (the Rules). Group procedures are only accessible in the Court of Session, according to the 2018 Act and cannot be heard by subordinate courts like the Sheriff Courts in your community.
When dealing with class actions before the enactment of the 2018 Act, The Scottish courts used pre-existing procedural instruments to handle multiple claims based on the same or similar rights and obligations, sometimes with modified instructions for specific groupings of cases. Cases that were started before July 2020 will continue to be handled using these processes.
The 2018 Act specifically calls for a review of group procedure five years after it becomes operative. Therefore, the implementation of an opt-out regime may be taken into account during that review process. Even so, it’s likely that the SCJC will decide to examine the matter sooner rather than later, particularly if case law developments in England and Wales allow litigants there to make use of opt-out methods. In a similar manner, if Scotland adopts the opt-out class action procedural device, this might put pressure on the UK Parliament to pass a new statutory procedure which will affect England and Wales.
There is already a sense of expectancy regarding the future of opt-in group procedure in Scotland, and it is probable that over the coming years, new case law and advice will develop to help define this. It will be fascinating to watch what kinds and how much of a claim is pursued. The types of claims that may attempt to use the group procedure are not restricted. We may see claims connected to the COVID-19 pandemic, such as employment claims and event cancellation claims, in addition to the anticipated data breach, product liability, and consumer claims.
The additional funding and expense provisions in the 2018 Act will probably also have an impact on the anticipated growth of group proceedings. Through improved lawsuit funding choices and the prospect of more financial security for some pursuers through qualified one-way cost shifting, these provisions promote wider access to justice.