Scotland

Historically, multi-party cases in Scotland have been filed individually and then case managed together (to some degree) on the basis that they involve similar issues. For instance:

• personal injury product liability cases involving pharmaceutical products Vioxx and Celebrex against Merck and Pfizer, respectively (now concluded);
• personal injury cases by individuals exposed to asbestos (now concluded);
• personal injury cases by residents or former residents at a housing development against land developers and social housing providers (majority of claims dismissed);
• personal injury product liability and medical negligence cases regarding vaginal mesh implants against health boards representing surgeons and mesh manufacturers (concluded or paused); and
• personal injury product liability cases involving metal-on-metal hip devices.

In 2018 the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the “2018 Act”) was enacted. This provided the legislative basis for a new group procedure in the higher tier civil court in Scotland. The policy memorandum for the bill which led to the 2018 Act set out the objectives of the new system:

“The introduction of a group procedure will help to broaden access to justice by allowing multi-litigants the opportunity to bring an action at a lower cost than individual cases. In turn, taking forward a number of related claims as a group procedure can help deliver a more streamlined and cost-effective outcome and reduce court time. An additional and important societal benefit to facilitating collective redress is the potential to deter harmful behaviour on the part of businesses and encourage corporate social responsibility. The introduction of a group procedure would help deliver a more streamlined approach to benefit both users and the courts.” (The Policy Memorandum for the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, paragraph 93.)

Court rules to bring the new procedure into force came into effect in July 2020.

There have been 13 group proceedings raised in Scotland to date, with at least a further three waiting for permission to proceed:

• the majority are diesel emissions claims against car manufacturers;
• two groups are brought by the victims of historic sexual abuse; and
• the final group comprised over 1,000 Kenyan workers who brought claims against their employer in relation to alleged personal injuries from working on Kenyan tea plantations. This group has been sisted (stayed) pending proceedings in Kenya (Hugh Hall Campbell KC (as representative party of the James Finlay (Kenya) Limited Tea Estate Workers Group Proceedings case) v. James Finlay (Kenya) Limited).

One further diesel emission case awaits permission, as do two separate proceedings in relation to data privacy claims advanced by individuals against private companies who themselves were the victims of cyberattacks.

Latest advertising by claimant firms in Scotland appears currently to be focused on cyberattacks and finance compensation claims.

This is a fast-moving area, and it is likely that the above will have moved on by the time of publication.

The procedure allows a single Representative Party (the RP), with the court’s permission, to bring claims on behalf of a group where they raise the same, similar or related issues of fact or law.

Currently, the proceedings may be brought only on an opt-in basis; there is, however, provision for an opt-out regime in Scotland in the future, which would, if enabled, be a radical change to the litigation environment in Scotland (see Section 4.1, below).

Claimants from outside Scotland can be part of the group, provided they establish jurisdiction in the Scottish courts.

Group proceedings in Scotland can currently be brought in relation to any private or public law (judicial review) civil claim.

As noted above, the claims in the group must raise the same, similar or related issues of fact or law.

To commence group proceedings in Scotland you must make two applications to the court: the first for permission to bring claims as a group; the second for permission for an individual to be appointed as the RP in whose name the action proceeds.

An application seeking permission to bring a group should demonstrate the following:

• that all of the claims made in the proceedings raise issues (whether of fact or law) which are the same as, or similar or related to, each other;
• that the applicant has made all reasonable efforts to identify and notify all potential members of the group about the proceedings;
• that there is a prima facie case;
• that it is a more efficient administration of justice for the claims to be brought as group proceedings rather than by separate individual proceedings; and
• that the proposed proceedings have real prospects of success.

The criteria for the application to be appointed RP are discussed below.

Costs

Other than at the permission stage, there are currently no specific rules in relation to funding, insurance, fees or expenses (costs) under the group procedure, so the normal rules apply as summarised below.

When determining whether an individual is a suitable person to act as a RP at the outset of proceedings, the court is to consider their financial resources to meet any expenses (costs) award. However, the details of any funding arrangement need not be disclosed. The financial standing of the RP has become a significant feature in recent applications for permission. To date, there has been a relatively low bar in terms of the evidence required to substantiate financial resources (e.g. statutory accounts). A letter of guarantee from a funder is typically required.

Funding

Third-party funding of litigation is allowed in Scotland. However, while use of these arrangements is evolving, litigation funders are not currently very active in Scotland.

There are prospective provisions relating to third-party funding in Scotland that are not yet in force, including when funding arrangements must be disclosed to the court and when they can be kept confidential, disclosure of the identity of the funder (and any intermediary) and the nature of the assistance being provided, and for the award of expenses against the funder (and any intermediary).

Insurance

Insurance is available to cover litigation costs. However, in Scotland, the after the event (ATE) insurance premium is not recoverable from the opposing party. The insured remains liable for the premium if they win.

Fees

As a general matter, in Scotland, solicitors can also enter into speculative (or conditional) fee arrangements and contingency fees. In relation to contingency fees, the success fee element is capped at 50% of damages for commercial cases and there is a sliding cap for personal injury cases.

Expenses

Expenses (costs) are at the court’s discretion, but the unsuccessful party must generally pay a proportion of the successful party’s costs (judicial expenses).

A court auditor determines the exact amount of judicial expenses during a procedural hearing, if these are not otherwise agreed. Counsel’s fees are recoverable. Other outlays, such as the cost of obtaining expert reports, witness expenses and court dues, can also be included in judicial expenses.

Interest is usually awarded on expenses. It is calculated from the date the expenses award is determined (unless there are exceptional circumstances) using the judicial interest rate (currently 8%), although there may be scope to ask for a different rate or for a different period to apply.

An offer to settle a case can be taken into account by the court when awarding expenses. A party who makes an offer to settle a case and wants to rely on the offer when expenses are assessed at the end of the action can state that the offer is “without prejudice save as to expenses”. Separately, a tender made by a defender may have consequences for expenses. A tender is a formal offer to settle a case. It can be made at any time during the court proceedings. If the pursuer (claimant) does not accept the tender, and the pursuer is awarded less than the amount tendered for, the pursuer fails to beat the tender. In that circumstance, the pursuer will be awarded expenses to the date of the tender and the defender can seek expenses from the date of the tender.

The relevant court rules provide broadly for a four-stage process:

• permission;
• preliminary hearing (initial case management directions);
• case management to proof (trial); and
• proof.

Within this broad structure, the court has wide discretion to manage proceedings as it thinks fit. There is no fixed timetable.

At the outset of the litigation, an applicant seeking to bring a group proceeding must apply to be authorised by the court as the RP in whose name the action will proceed and who has certain obligations under the court rules.

The court must be satisfied that the applicant is a “suitable person” to act as a RP, considering a non-exhaustive list of factors including:

• the special abilities and relevant expertise of the applicant;
• the applicant’s own interest in the proceedings;
• whether there would be any potential benefit to the applicant, financial or otherwise, should the application be authorised;
• that the applicant is independent from the defender;
• that the applicant would act fairly and adequately in the interests of the group members as a whole, and that the applicant’s own interests do not conflict with those of the group whom the applicant seeks to represent; and
• sufficient competence by the applicant to litigate the claims properly, including financial resources to meet any expenses awards (the details of funding arrangements do not require to be disclosed).

The application of these criteria has been one of the most contested aspects of the procedure to date, with the Inner House (Scottish appeal court) deciding that the bar for this test is low.

A group action may be brought by a RP, even where they are not a member of the group.

To date, the RP in each pending group proceedings has been an individual (natural) person, but it is permissible for an organisation/entity to act as the RP.

Currently the group procedure is an “opt-in” scheme only. However, consideration is being given to allowing “opt-out” claims as well (see Section 4.1, below).

The RP must make all reasonable efforts to identify and notify all potential members of the group about the proceedings. The court may require advertisement.

The RP must maintain a group register of all group members who have opted into the proceedings. The intimation (service) and/or lodging (filing) of the group register is relevant to time bar, and the court has highlighted the importance of the register being administered properly. The court has ordered in more recent cases that the RP has to intimate and lodge (file) an updated group register once a month.

If a group member wishes to withdraw from the group after commencement of a proof, or where it would leave only one person remaining in the group, then an application has to be made to the court, which can set the terms on which that group member can withdraw; in particular in relation to payment of expenses.

There are no limits on the size of the group beyond the minimum (i.e. more than two claims).

The group procedure rules give the presiding judge wide discretion to make any order that they think will secure the fair and efficient determination of the group. For instance, this allows for a bespoke timetable in different actions, and procedure such as in relation to disclosure (see below).

In particular, as early as the Preliminary Hearing (the first case management hearing in the proceedings), which comes after service of initial pleadings, the court has wide ranging powers to order:

• detailed written pleadings to be lodged, on all or particular claims or issues;
• a statement of facts to be lodged, on all or particular claims or issues;
• amendment of pleadings;
• disclosure of the identity of witnesses;
• disclosure of documents; and
• lodging of expert reports or witness statements.

Disclosure

In Scotland, the process is one of “recovery” and there is no automatic right of discovery. A person seeking documents must specify the documents or classes of documents sought. The traditional procedure in Scotland is known as commission and diligence and involves a “haver” (a person holding documents falling within the scope of an order for recovery) who must attend for examination before an appointed commissioner if disclosure is not given voluntarily.

In relation to group proceedings, however, the court can make orders for the simple disclosure of documents and evidence by the party/ies to proceedings, without following the normal procedure outlined above, and at an early stage of proceedings. The court will generally consider:

• whether the material sought appears to bear upon the matters in dispute;
• the position of the parties to access the potentially significant information; and
• the legitimate benefits and burdens of making the order sought.

Documents can be recovered from another party to the action or from any third party. In the case of a third party, the traditional commission and diligence procedure would be adopted.

Privilege

Privilege is a recognised concept in Scotland, and this comprises legal professional privilege and without prejudice privilege.

Broadly, legal professional privilege is similar to England, and covers legal advice privilege and litigation privilege.

Without prejudice privilege is also recognised, although it has no formal legal meaning in Scots law. It is common practice to make a statement noting that a communication is “without prejudice”, but it is the content of the communication rather than the use of this phrase that determines if it attracts privilege. An unambiguous statement of fact, even if contained in a without prejudice document, may be disclosable.

There is no specific limit to the types of remedies available in group proceedings. In theory any remedy that would be available to a singular pursuer in a normal civil claim is competent.

Most group proceedings are actions for compensation, but the RP may also seek injunctive and declaratory relief. For example, in the James Finlay case referred to above, an interim anti-suit interdict (injunction) was obtained to prevent parallel proceedings in Kenya.

For compensation claims, proof of loss is required like in any other civil claim.

The RP must consult with the group members on the terms of any proposed settlement. If a group member objects to the settlement, they can withdraw consent for their claim to be included in the group proceedings.

Otherwise, any settlement is agreed extrajudicially between the parties on terms that would apply to any of the claims that are being settled. The court is not required to approve or endorse any settlement. The court’s only involvement would be to grant a decree (final order) in respect of the settled claims.

ADR is voluntary and generally encouraged in all actions in Scotland, including group proceedings, but there are no specific rules requiring ADR in the group context. ADR may be attempted at a pre-action stage or during the course of litigation, in which case the court may sist (stay) the litigation pending the outcome of the ADR. As a practical matter, simple negotiation is often conducted by parties in collective actions.

There are no rules governing how funds should be distributed if liability were to be established. The appropriate mechanism would need to be agreed between the parties or otherwise ordered by the court, although there is to date no precedent for how a court would determine this issue.

There are no special rules regarding enforcement of judgments in group proceedings, and these may be enforced in the same way as for ordinary civil claims.

The possible methods of enforcement are wide-ranging and depend on the nature of the case. The methods include:

• arrestment (this freezes funds held by a third party for the debtor company, for example in a bank account);
• money attachment (this applies to business cash and enables sheriff officers to seize cash held at a place of business);
• inhibition (this seeks to prevent the debtor company from selling or mortgaging their property); and
• liquidation (service of a charge for payment that, if not paid, entitles the creditor to petition for the company to be wound up. The creditor will then have a claim on any assets of the liquidated company).

To date no group proceedings in Scotland have reached a substantive evidential hearing, including proof (trial), and therefore no final judgments have been issued requiring enforcement.

The Scottish Civil Justice Council (SCJC) is currently considering the possibility of extending the Scottish group procedure rules to allow for opt-out (rather than just opt-in) proceedings, as part of a review of the operation of the group procedure rules. A call for evidence on whether to introduce an opt-out regime closed on 23 January 2026. The outcome of the call for evidence is anticipated in the spring or summer of 2026. If an opt-out regime is brought in, it would be a radical change to the litigation environment in Scotland.

The SCJC also held a consultation in 2025 to seek comments on the opt-in procedure given experience to date. No conclusions from that review have been published as yet.