Group proceedings in Scotland

Stephen Goldie
Brodies, Edinburgh

Group proceedings or 'class actions' procedure came into force in Scotland on 31 July 2020.

For the first time, groups of two or more people with the same, similar, or related claims have a mechanism to raise proceedings as a single action in the Court of Session (Scotland’s highest civil court at first instance, being the equivalent of the High Court in England).  

The rules governing this procedure, published on 9 July 2020, implemented Part 4 of the Civil Litigation (Expenses in Group Proceedings) (Scotland) Act 2018. Whilst this Act provided for this procedure to proceed on either an 'opt in' or an 'opt out' basis, the rules currently provide only for group procedure on an 'opt in' basis.

Since the rules came into effect, the Court of Session in Scotland has certified three groups for group procedure:

• The Celtic PLC group proceedings;
• James Finlay (Kenya) Limited group proceedings, and 
• VW Group NOx Emissions group proceedings.

The three groups are very different from each other, illustrating the broad range of cases that may qualify for group procedure.  

The first relates to claims by a small number of claimants against The Celtic PLC, arising out of the alleged sexual assault/abuse of young boys whilst they played for Celtic Boys Club.  

The second relates to claims by employees of a Scottish headquartered company, in relation to musculoskeletal injuries suffered by employees at their place of work, a Kenyan tea plantation. This group has a larger number of claimants within it. This claim has led to many skirmishes before the Scottish courts. Firstly, considering whether each of the workers' claims could be said to be the same as or similarly related to each other factually - under the broad heading of musculoskeletal injuries. Secondly, in relation to an injunction obtained by the defender in Kenya, preventing the claimants from proceeding with their class action in Scotland, the Scottish court ordered the defender to drop the injunction. Since then, there has been a substantive hearing on the question of jurisdiction and forum non conveniens – which were determined in the group's favour.

The third relates to the well-known 'diesel-gate' type claims which are proceeding in various jurisdictions. This group relates to the claim as raised against the Volkswagen group of companies. This claim had many procedural hearings, before the action was ultimately settled by the defenders.  

Our initial impression of the way these claims are being handled, under the group proceedings rules, is that the Scottish courts are keen to embrace this new procedure. They have taken a permissive approach to the claims that can be grouped together. The Scottish courts have also prevented other jurisdictions from cutting across their own.  

In an ESG context, both The Celtic PLC and the James Finlay (Kenya) Limited groups would suggest that individual claimants of limited means can successfully group together to challenge corporates. Group procedure could be viewed as a useful tool for those who might not find a route to justice as individuals because of societal challenges.  

More widely, the trend in other jurisdictions for an uptick in the use of class actions in securities litigation, data breach cases and following environmental incidents suggests that it is only a matter of time before the Scottish courts are handling frequently a greater number of diverse group proceedings.