The Court of Session’s decision in Michelle Donnelly v Johnson & Johnson Medical Limited adds another layer to the evolving case law on group proceedings in Scotland.
This article revisits recent judicial trends (previous discussed here) - in light of Donnelly and earlier decisions in Milligan v Jaguar Land Rover, Mackay v Nissan, and Bell v Volvo - and the implications for businesses facing potential group proceedings.
Legal framework recap
- Legal Framework
Group proceedings in Scotland are governed by Chapter 26A of the Rules of the Court of Session.
Before proceedings can commence, the court must:
- Authorise a representative party (RP) - The court must be satisfied that the proposed RP is a suitable person, considering their abilities, relevant expertise, competence, and financial backing.
- Grant permission for the group action to proceed - The Court must be satisfied that (i) the claims raise issues of fact or law that are the same, similar, or related, (ii) there is a prima facie case with real prospects of success, and (iii) group proceedings would be a more efficient means of administering justice than individual claims.
Judicial trends recap
- Milligan v Jaguar Land Rover
The Inner House upheld the Lord Ordinary’s decision to authorise the applicant as RP and grant permission for proceedings involving over 6,400 individuals.
The Inner House emphasised the discretionary nature of decisions to authorise and the low threshold for RP suitability. Furthermore, the court emphasised that a prima facie case with real prospects of success is sufficient, even if pleadings are underdeveloped. It also noted that concerns around funding and conflicts of interest are premature at the permissions stage.
- Mackay v Nissan
Similar objections to those made in Milligan were raised and dismissed in this case.
The Inner House reiterated that the suitability test for appointment as an RP is not onerous and that, at the permission stage, the focus is upon whether there is a serious question to be tried, which is a low barrier. Furthermore, this decision emphasised that the policy objectives of the 2018 Act, particularly access to justice and efficient case management, must guide the court’s approach. With such a high number of proposed group members in this case, “the prospect of individual proceedings border[ed] on the unthinkable”.
- Bell v Volvo
The Court of Session granted permission for group proceedings, sending a clear message that the purpose of the regime is to promote efficiency and access to justice - not to create procedural hurdles.
The court signalled a commitment to making the regime work, prioritising flexibility and pragmatism, and resistance to technical or procedural objections at the applications stage.
Recent development - Donnelly v Johnson & Johnson
As discussed in our recent article (available here), in light of the above decisions, defenders are well advised to focus less on early procedural resistance - unless necessary - and more on the fair and efficient management of claims.
Donnelly provides further insight into how defenders can support procedural efficiency.
This case involved seventeen claimants alleging harm from mesh products designed and manufactured by the defender. The defender argued that five different types of the mesh were involved, each differing significantly in composition, application, and risk profile. It was submitted that the application to proceed by way of group action lacked clarity regarding the alleged common issues and that certain preliminary matters required individual consideration. The defender also contended that raising individual proceedings for this number of claimants would not present significant difficulty.
The court refused to grant authorisation to proceed by way of group action, despite the applicant being deemed suitable and the claims meeting the prima faciethreshold. Lord Young held that the proposed litigation failed to demonstrate procedural efficiency and that their underdeveloped proposal did not help matters. Had permission been granted, Lord Young indicated that a more particularised formulation of group issues would have been necessary. Furthermore, it was held that existing case management tools could be used to mitigate cost and complexity.
Conclusion
Scottish courts continue to back collective redress, but Donnelly is a reminder that group proceedings are not automatic. While early procedural resistance is no longer a stronghold for defenders, the courts remain focused on fairness, proportionality, and efficiency.
While the legal thresholds at the applications stage remain low, success ultimately hinges on the applicant’s ability to demonstrate that group proceedings offer the most efficient route. This is likely to prove more of a hurdle where those within the proposed group are modest in number. All the more so when the proposal for group proceedings is underdeveloped.
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