Two recent decisions from Scotland’s supreme civil appellate court, the Inner House of the Court of Session - Milligan v Jaguar Land Rover [2025] CSIH 16 and Mackay v Nissan [2025] CSIH 14 - offer important guidance on the evolving landscape of group proceedings (class actions) in Scotland.

Both cases involved reclaiming motions (appeals) challenging the decisions by the first instance judge, the Lord Ordinary, (1) to authorise the appointment of a representative party to represent the members of the proposed group and (2) to grant permission for group proceedings to be launched in relation to the group members’ claims arising from diesel emissions. The Inner House upheld the Lord Ordinary’s decisions in both cases.

This blog explores the key takeaways from these decisions and what they mean for businesses facing potential group proceedings in Scotland.

The Legal Framework: A Quick Recap

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 and grant permission for the group action to proceed.

The court must be satisfied that the representative party (“RP”) is a suitable person to take on that role, taking into account various factors including:

  • any special abilities and relevant expertise of the proposed RP;
  • the demonstration of sufficient competence by the proposed RP to litigate the claims properly, including financial resources to meet any expenses awards (the details of funding arrangements do not require to be disclosed).

If the proposed RP is authorised, the court will then consider whether the claims should proceed as a group, which requires that:

  • The claims raise issues of fact or law which are the same as, or similar or related to, each other;
  • There is a prima facie case with real prospects of success; and
  • Group proceedings would be a more efficient means of administering justice than individual claims.

Milligan v Jaguar Land Rover

In Milligan, the defenders challenged both the appointment of Mr Milligan as the RP and the granting of permission. The group comprised over 6,400 individuals who had purchased or leased Jaguar Land Rover vehicles allegedly fitted with unlawful defeat devices.

In its decision, the Inner House emphasised that:

“Decisions to authorise an individual as the [RP] and to give permission for proposed group proceedings to be brought are discretionary in nature…The resolution of such questions falls pre-eminently within the discretionary sphere of decision-making entrusted to the Lord Ordinary.”

With this in mind, the Inner House agreed with the decisions that had been made by the Lord Ordinary, holding that:

  • The suitability test for appointment as an RP is not onerous. Mr Milligan, though lacking legal expertise, was supported by a competent legal team and backed financially by a litigation funder.
  • The existence of a prima facie case and real prospects of success had been sufficiently demonstrated, even if the pleadings were not fully developed.
  • Concerns about funding adequacy and potential conflicts of interest were premature and could be addressed if they arose, for example by way of an application for caution (security for costs).

Mackay v Nissan

In Mackay, the reclaimers (various Nissan companies) raised similar objections to those made in Milligan, arguing that the group was too disparate and that the RP lacked the necessary qualifications.

The Inner House again upheld the Lord Ordinary’s decision, highlighting that:

  • The Lord Ordinary was fully entitled to conclude that the proposed RP could so act. As the Lord President put it, “there was nothing to suggest that he would act otherwise than fairly and adequately in the group’s interests; he had the support of a highly-qualified team of solicitors and independent counsel; and there was an undertaking from the funding company to meet all legal liabilities.”
  • There was “ample material before the Lord Ordinary to entitle him to hold that there was sufficient communality amongst the members of the proposed group to allow the factual and legal issues to be regarded as at least related to each other.”
  • The court reiterated that, at the permissions stage, the focus is on whether there is a serious question to be tried, which is a low barrier.
  • 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, “the prospect of individual proceedings borders on the unthinkable”.

    Common Themes

    1. Low Thresholds

      Both decisions confirm that the bar for authorising group proceedings is intentionally low. The Scottish court is reluctant to impose technical or evidential hurdles at the preliminary stage. For defenders, this means that challenges against the initiation of group actions are unlikely to succeed unless there are clear and compelling reasons.

      2. Representative Parties Need Not Be Experts

        The Inner House has made it clear that RPs do not need to be legally sophisticated. What matters is that they are willing, independent, and supported by competent legal advisers and funding arrangements.

        3. Emphasis on Access to Justice

        The Inner House repeatedly underscored the importance of access to justice and the policy aims of the 2018 Act. The court appears inclined to interpret procedural rules in a way that facilitates, rather than hinders, group litigation.

        4. Procedural requirements in relation to appeals must be adhered to

        In both cases, the Inner House stressed that the two court orders that are granted at the commencement of group proceedings (one appointing a representative party and one granting permission to bring group proceedings) are separate, and therefore a party wishing to appeal against these orders must enrol two separate reclaiming motions (i.e. bring two separate appeals). Since in Milligan and Mackay, only one reclaiming motion had been enrolled in each case (in respect of the permission to bring group proceedings), the appeals against the appointment of the representative parties were, in both cases, incompetent, although the court noted that they would have been refused in any event.

        Conclusion

        The Milligan and Mackay decisions mark a significant moment in the development of group proceedings in Scotland. They signal a clear judicial commitment to making collective redress accessible and efficient. For businesses, this underscores the importance of early risk assessment, robust compliance practices, and proactive litigation strategies.

        Contributors

        Fiona Chute

        Legal Director

        Craig Watt

        Partner & Solicitor Advocate