Authorisation and permission revisited: strategic lessons from Bell v Volvo

The Court of Session’s latest decision in Bell v Volvo Car Corporation & Others adds a further layer to the fast-developing case law on group proceedings in Scotland. While Milligan and Mackayset the tone earlier this year (see Brodies' comment here), Bell leaves little doubt: the procedural threshold for resisting the authorisation or permission stages for group proceedings is high, and is likely to remain so.

This article reflects on the strategic implications for defenders in light of Bell v Volvo.

Overview of Bell - A “Bracing” climate for defenders

The Court of Session has granted permission for group proceedings against Volvo and associated finance companies. Reminiscent of Milliganand Mackay, the court ultimately found that the statutory criteria for authorisation of a party representative and permission for group proceedings were met and exercised its discretion to approve both applications.

In its decision, the court was candid in its tone. Those seeking to oppose group procedure at the outset now face, what it described as, a “somewhat bracing” climate, a direct acknowledgement that pre-Mackayresistance strategies have become increasingly difficult to sustain.

The overarching message of Lord Sandison's decision was that the court intends this procedural regime to work. That means flexibility, pragmatism, and a resistance to technical or procedural objections which might impede the underlying policy aim: access to justice through collective redress.

Key strategic takeaways for defenders

The Bell decision, following the trajectory set by Mackayand Milligan, confirms that early procedural resistance is not a stronghold for defenders in Scottish group proceedings. These developments do not signal an erosion of procedural safeguards, but rather a recalibration, where fairness, proportionality, and efficiency are prioritised above technicality.

In this context, defenders are well advised to adapt their approach, focusing less on early procedural resistance, unless necessary, and more on the fair and effective management of claims as they progress. The following themes are emerging as increasingly important:

1. Authorisation and permission: the gateway stage

The court has provided a clear message, that the purpose of group proceedings is to promote efficiency and access to justice, not to create an additional hurdle for claimants. As such, defenders should resist the instinct to treat authorisation and permission stages as mini-trials. These stages are not fertile ground for technical objections, and unsuccessful opposition may risk reputational consequences in the eyes of the court.

2. Maintain ongoing oversight of representatives

Although the initial bar for authorisation is relatively low, the conduct and capacity of the representative party remain important throughout the life of the proceedings. Defenders should monitor developments that may raise concerns about representation, such as:

• Conflicts of interest;
• Shifts in group definition or scope;
• Questions around funding or communication with group members.

3. Shift focus to case management and class definition

One of the central aims of the group procedure is to improve efficiency. Defenders can play a constructive role in supporting this aim by:

• Pushing for clarity and rigour in the group definition to reduce procedural uncertainty;
• Helping to identify areas of common ground early;
• Using active case management strategies to mitigate cost and complexity.

This is particularly relevant where speculative or broad group claims have been allowed through the gateway stage.

4. Invest early in factual and technical foundations

While the legal bar for permission is low, the eventual burden of persuasion remains with the claimants. With that in mind, defenders should invest in early development of:

• Robust technical evidence;
• Factual narratives that distinguish cases within the group;
• Economic analysis relevant to loss, causation, or consumer reliance.

Early expert input can help structure an efficient defence strategy that avoids conceding too much ground too early.