Class Actions, or Group Proceedings as they are known in Scotland, continue to grow in popularity. Over the past couple of years there has been an increasing number of class actions raised across the UK, year on year, notably personal injury and product liability claims. However, what trends and areas of dispute are we likely to see being litigated via class action procedure in the coming year?
- Data Protection and Privacy
The leading case in this field still remains Lloyd v Google, however it is likely we shall see a continued growth in actions falling within this category. Whether or not these types of action are successful is doubtful, given the recent English High Court decision in Andrew Prismall v Google and DeepMind Technologies where the case was struck out as not all class members had experienced the same harm. Further reflection on this decision can be found in our recent article on Data Breach Class Actions.
- Environmental, Social and Governance
A wide range of disputes can fall under the "ESG" heading, including disputes relating to climate change, human rights, allegations from consumers in respect of the sustainability of products and services, as well as other environmental and social issues.
ESG concerns are becoming increasingly prevalent. In England, a group litigation has been raised against a local authority water board in relation to allegations of failures to report pollution incidents. This type of scenario could arise across the UK, including in Scotland. As companies strive to reach targets, and individuals attempt to hold entities responsible for their actions, then mass litigation in this space seems inevitable.
- Financial Services
We have already commented on the potential for 'Securities' Litigation to grow in Scotland.
The Financial Conduct Authority (FCA) has recently published its latest consultation paper on the UK's new listing regime, which includes the new draft UK Listing Rules. The FCA are trying to encourage more companies to list in the UK. The proposed changes will result in greater risk shifting to investors as we transfer to a disclosure-based regime (rather than shareholder votes or eligibility criteria), with more onus on investors to do their own due diligence, which may impact future claims brought by shareholders under ss.90 and 90A of the Financial Services and Markets Act 2000 (FSMA).
- Mass Arbitrations
Although not strictly falling under the class action procedure, mass arbitrations are a phenomenon that is on our radar. They are similar to the concept of class actions, albeit are conducted as an arbitration rather than a litigation.
Most civil and commercial matters, whether domestic or international, are arbitrable. In the US, we have seen tech giant, Samsung, facing a mass arbitration in respect of biometric privacy laws.
Only time will tell if these key 'trends' shall emerge and grow in Scotland, but we shall be watching. For more information about group proceedings and links to insights into the potential risks for Scottish businesses, visit our class actions webpage.
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