The year in review
Traditionally, the Scottish courts have required to utilise existing tools of procedure to grapple with multiple claims which, in essence, are premised on the same or similar rights and obligations. A pragmatic approach is taken and courts will often sist (a stay in Scottish procedure) all but one claim, and allow that one matter to run to a debate (a legal argument without evidence) or proof (a civil trial on the evidence in Scotland) as a 'test case'. The remaining cases will then be continued, pending the final outcome of the test case. For example, there are over 500 cases presently before the Court of Session seeking damages for personal injuries caused by allegedly defective vaginal mesh products. On 1 June 2018, and following a five-day debate, Lord Boyd handed down his decision in AH v. Greater Glasgow Health Board, which constitutes a combined judgment of four of the 18 'lead actions' in these vaginal mesh claims. In the introduction to his decision, his Lordship explains that all but 18 of the 500 cases have been sisted, pending the outcome of these proceedings. Lord Boyd accepted the position of the pursuers and granted a proof before answer (a mixed trial of law and evidence) in all of the cases, subject to time bar.
The primary downfall of such an approach is that, strictly speaking, these cases are still entirely distinct: there is no means by which numerous actions can be consolidated into a single court action and managed as a group. The outcome of the test case therefore has no automatic bearing on the remaining cases, subject to the doctrine of precedent. As different claimants may rely on different documentation and different witnesses, this approach poses a risk to decisional harmony. Moreover, by having to advance each case separately, there still remain issues as to cost and duplication of papers; problems that underpin the rationale for class action procedure.
In light of these shortcomings, the 2018 Act was passed, its provisions regulating what are 'group proceedings', and came into force on 30 January 2019. The 2018 Act's genesis dates back to 1 June 2017, when the then Cabinet Secretary for Justice, Michael Matheson MSP, introduced a Bill before the Scottish Parliament. The Bill was intended to deal with various matters of civil procedure in Scotland, including success fee arrangements, expenses in civil litigation, and the regulation of claims management companies. A novel concept for Scotland, at least through a strictly legal lens, was the proposal to introduce multiparty procedure.
Termed 'group proceedings', the Scottish Parliament's Stage 1 Report to the Bill explored the possible forms that the new procedure might take. For example, the Report identified three broad categories of group proceedings, described respectively as class actions, organisation actions, and public interest actions. Class actions are brought by a named pursuer who acts as a representative of the class of individuals with the same legal issue, with the representative seeking redress for themselves and on behalf of the class as a whole. Organisation actions are brought by organisations, such as consumer or environmental groups, on behalf of their members or the general public. Public interest actions are advanced by public officials on behalf of the public at large, or a specific group of the public. The new procedure, which could encompass all of these forms, is termed 'group proceedings' under the 2018 Act.
The Report further highlighted that group proceedings can take the form of either an opt-in or opt-out procedure. The former refers to a procedure where a group of pursuers expressly consent to be a part of, and therefore opt in to, the proceedings. An opt-out procedure, on the other hand, operates by defining a class of individuals who are deemed to be entitled to benefit from any ultimate remedy. Anyone falling within the definition of the group is deemed to have consented to the proceedings being pursued on their behalf, unless they opt out expressly. Only those who actively opted out of the proceedings would be entitled to raise their own separate claim.