Welcome for proposals to rethink multiple claims

Duncan Batchelor is a Partner with Clyde & Co
Duncan Batchelor is a Partner with Clyde & Co
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The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill comes almost 40 years after lawmakers first considered multi-party litigation procedure. Implementing recommendations of Lord Gill’s 2009 Scottish Civil Courts Review, it is driven by a policy to improve access to justice.

The stage one report has been published and there remain hoops for it to jump through, but personal injury lawyers and consumer groups support the bill becoming law. If it does, how will it impact litigation in Scotland?

Scotland currently has no formal procedure to deal with multiple claims as a group, with parties usually agreeing the solution of running one or two “test cases” to trial (proof), while the rest are paused (sisted). The pursuers still need to raise each case individually at considerable expense and a test case decision is not always binding on the rest. Depending upon the litigation, it may not be easy to reach consensus.

In larger or more complex group claims, the Court of Session has taken a more creative, ad hoc approach. For example, in the pelvic mesh and Vioxx litigations, both highly complex, the court set out bespoke procedures through a series of Practice Directions. However, the power of the court to proceed in that way has been questioned.

Evidence has shown that group procedure is widely welcomed in Scotland. Costs for pursuers would reduce, businesses would be deterred from harmful behaviour by the threat of mass litigation, and precious court time would be saved.

Does the bill match these ambitious aims? If it became law, group procedure in Scotland would look like this:

l Available only in the Court of Session.

l Minimum of two claims per group, but no maximum.

l “Opt-in” – relevant claims are not automatically included in the group.

l One representative party’s case, not necessarily a member, is heard on behalf of the group.

l A decision in the representative party’s case is binding on the group.

l The court must give permission to apply the procedure, which will only be granted if all of the claims “raise issues (whether of fact or law) which are the same as, or similar or related to, each other.”

Immediate questions arise. Why withhold this from sheriff courts? The All Scotland Personal Injury Court would be a more cost-effective forum to litigate many low-value claims. Sheriff courts might also be suited to considering low value human rights cases. Claimants using the Court of Session will pass higher costs on to defenders in any award of expenses if successful.

What about “opt-out” procedure, in which cases meeting defined criteria are automatically conscripted and must actively choose to leave the group? Imposing the step of opting-in risks outlier claims running alongside the group at additional expense. How would a decision in those claims affect the group?

How does a prospective claimant sign up to the group? Will they require to raise individual proceedings, or simply add their name to a list? What checks will be made to ensure that claims are genuine?

The courts will need to provide guidance on the proposal that “similar” or “related” claims could form a group. How does one define “similar” or “related”? Must all claims have the same defender, same legal basis, or rest on the same facts? In the US, a distinction is drawn between mass tort and class actions. In mass tort, every claimant is a member of a group but treated as an individual. In class actions, a representative who stands in for the rest of the class. All members of the class are treated as one claimant, not separately. A number of criteria have to be met for an action to proceed as a class action. There has been no attempt to draw such a distinction under the Scottish proposals.

It is not yet clear whether the one-size-fits-all procedure envisaged by the bill will be sufficiently flexible to deal with the various types of group litigation that could arise.

The devil may ultimately be in the detail, as specific court rules will be developed by the Scottish Civil Justice Council. For now, the bill passes to stage two for amendment… watch this space.

Duncan Batchelor is a partner with Clyde & Co