UK & Europe
The Court of Session has introduced new rules which, for the first time, enable two or more parties with the same, similar, or related claims, to raise proceedings in a single action in the Court of Session. They come into force on 31st July 2020.
The Scottish Civil Justice Council has stated that the rules will be "particularly useful in cases where lower value claims are considered too costly for individuals to raise separately", giving an indication of the types of cases where these rules will be used. The introduction of the rules also signifies an effort to make the Court of Session more financially accessible, and indeed this was the principal aim behind the legislation.
These new rules should save court time and parties' money. The obvious significant benefit for pursuers is lessening the financial burden of bringing individual actions in the Court of Session. For defenders, an advantage is the opt-in procedure. This gives defenders knowledge and reassurance regarding the size and scale of the action. The legal costs of one action should be significantly less than the combined costs of many separate actions.
On the flip side, group proceedings may create a risk that claims will proceed where they would have had no merit on their own and discrete issues may be missed. Similarly, group proceedings reduce the ability to provide individualised representation or outcomes.
Inevitably some aspects of the rules will become clearer in practice.
What qualifies as sufficiently similar or related will be explored by the court. We also expect the court's level of involvement in case management and the logistics of coordinating group proceedings to be clarified through use. However, given the objectives behind the rules, we anticipate that the court will be as accommodating as possible.
Our experience of group-type litigation prior to these provisions is that numerous firms can be involved for pursuers. Thus, there may be multiple applications to take on the role of representative party and we expect to see some competition between claimant firms.
Finally, the SCJC has said that it will be continuing work on an opt-out procedure. This would mean a claim can be brought on behalf of an unlimited group of people; if the claim is successful the award will be available to the entire group unless they actively chose to opt out of the proceedings. This will be an area to keep a keen eye on, particularly for defenders.