Holyrood has given the green light to new law bringing US-style "class actions" to Scotland for the first time. The aim is to improve access to justice, especially for consumers, by grouping similar claims together - but is the new procedure up to the mark?
On 1 May 2018, the Scottish Parliament passed the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. Coming 40 years after Scottish lawmakers first contemplated multi-party procedure, it fulfils recommendations left over from Lord Gill's 2009 Scottish Civil Courts Review. Arguably long overdue, Scottish "group procedure" is finally set to become law. But how will this impact litigation in practice?
An Ad Hoc Approach
Scottish courts currently have no formal procedure to deal with multiple claims as a group. To get around this, litigants adopt the pragmatic solution of running one or two "test cases" to trial, while the rest are paused. This is not ideal, as claimants still need to raise each case individually, at considerable expense. To compound problems for both sides, there is no certainty, as a test case decision is not usually binding on the rest.
Large or complex group claims have called for a more creative approach. In the pelvic mesh and Vioxx drug litigations, the Court of Session set out bespoke procedure in Practice Directions. Whether the court actually has power to do this has been questioned.
Against this background of uncertainty, group procedure has been widely welcomed in Scotland. The proposals enjoyed vigorous support from personal injury lawyers and consumer groups, who say costs for pursuers would massively reduce. Businesses would be deterred from harmful behaviour by the threat of mass litigation; corporate social responsibility would be encouraged; a streamlined, cost-effective outcome would be delivered; and precious court time saved. Access to justice is the central theme. But does the new procedure match these ambitious, noble aims?
When it comes into force in summer 2018, group procedure in Scotland will look like this:
- Available only in the Court of Session.
- Minimum of two claims per group, but no maximum.
- "Opt-in" - relevant claims are not automatically included in the group.
- One representative party's case, not necessarily a member, is heard on behalf of the group.
- A decision in the representative party's case is binding on the group.
- 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."
In fact, the procedure raises more questions than answers, particularly for defenders. For example:
- Why exclude the sheriff court, which is surely a more cost-effective forum for low-value claims?
- Why "opt-in" procedure? Why not "opt-out," where cases meeting set criteria are automatically conscripted, unless they choose to leave the group? Imposing the step of opting-in on claimants increases costs. It also risks outlier claims running alongside the group. How would a decision in those claims affect the group?
- How will a claimant join the group? If they need to raise individual proceedings, that negates the purpose of the procedure. If they simply add their name to a list, how will defenders know all claims are genuine?
- Perhaps most importantly, what defines "similar" or "related" claims? This is ripe for dispute. Must all claims have the same defender? The same legal basis? The same facts? The wording of the Bill casts the net widely - maybe too widely. On one view, all asbestos cases are "similar" and all claims against the NHS "related." Guidance will be needed from the court to make these new definitions workable in practice.
The American Way
In the USA, group procedure has been around for decades. There, 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 a class action, there is a representative who stands in for the rest of the class. All members of the class are treated as one claimant, not separately. Specific criteria must be met for an action to proceed as a class action.
Interestingly, and regrettably, there is no attempt to draw the same distinction in Scotland. A missed opportunity perhaps? Here, it remains to be seen whether the one-size-fits-all procedure will be flexible enough to adapt to the complexities of modern group litigation. Specific court rules are yet to be developed by the Scottish Civil Justice Council, so the devil may ultimately be in the detail. Hopefully those rules will strike a balance between reducing cost and inconvenience for claimants and maintaining protection for defenders from potentially spurious claims.