Collective litigation has become an increasingly important feature of the UK disputes landscape. Large-scale claims in areas such as consumer law, competition, product liability, and data protection have demonstrated the significant exposure businesses may face when issues affect large groups of individuals.
Recently, the Scottish Civil Justice Council issued a call for evidence on whether Scotland should introduce a broader opt-out mechanism for group proceedings. This would create a domestic opt-out route within the Scottish courts, sitting alongside the UK-wide opt-out regime already available for competition claims before the Competition Appeal Tribunal (CAT). If implemented, the reform could extend the scale of Scottish collective actions and increase the potential exposure for defenders.
Across the UK, collective litigation mechanisms vary by jurisdiction and by the type of claim. These differences influence how actions can be brought and the scale of potential risk. Against that backdrop, an important question arises for businesses operating across multiple UK jurisdictions: does Scotland’s group proceedings regime present a different risk profile when compared with England and Wales?
Collective litigation mechanisms in England and Wales
In England and Wales, collective claims can arise through several mechanisms. Many are managed through Group Litigation Orders (GLOs) in the High Court of England and Wales, which allow claims involving common issues to be coordinated together. These proceedings operate on an opt-in basis, meaning claimants must actively join the litigation.
Alongside GLOs, representative actions are available under Civil Procedure Rule 19.8. However, the Supreme Court’s decision in Lloyd v Google LLC [2021] UKSC 50 means their utility has been significantly curtained due to the requirement for bifurcation and the limits placed on identifying a class with the “same interest”.
The most active forum for large-scale collective redress is the CAT. It operates on a UK wide basis and can certify competition claims on either an opt-in or opt-out basis. In opt-out cases, individuals falling within the defined class are automatically included unless they take steps to opt out. This mechanism can generate very large claimant groups, materially increasing the commercial stakes for businesses facing such claims. However, the CAT’s jurisdiction is limited to competition law, meaning there is no equivalent opt-out route for other types of claims in England and Wales.
Taken together, these mechanisms form a fragmented landscape: an opt-in GLO regime, a constrained representative action model, and a highly active but competition-only opt-out route before the CAT.
Scotland’s group proceedings regime
Group proceedings were introduced in Scotland in 2020 and are heard in the Court of Session. The regime allows claims which are the same, similar or related to be brought together through a representative party, subject to authorisation by the court.
Like GLOs, Scotland’s system operates on an opt-in basis. Claimants must actively elect to participate, and the court must authorise both the representative party and the group. Although still relatively new, the regime has already been used across consumer, product and regulatory contexts, and its practical scope continues to develop.
Importantly, because the CAT operates UK-wide, Scottish claimants can already participate in UK-wide opt-out competition proceedings. The absence of a domestic opt-out system in Scotland therefore does not prevent Scottish claimants from accessing opt-out mechanisms altogether; rather, it limits the availability of opt-out proceedings in Scotland to competition cases pursued in the CAT.
While the framework is now established, the number of cases raised to date has been relatively limited, meaning the regime is still developing in practice.
Does Scotland present a lower litigation risk?
At first glance, Scotland’s opt-in structure may suggest a lower collective litigation risk than in England and Wales, particularly when compared with opt-out actions in the CAT. Opt-in mechanisms generally result in more gradual development of claimant groups, which can moderate the overall scale of claims.
However, the reality is more nuanced. Opt-in systems do not prevent coordinated litigation. Where claims are commercially viable and significant numbers of individuals are affected, claimant firms and litigation funders remain capable of assembling substantial pursuer groups. Businesses with UK-wide operations may also face parallel proceedings in different jurisdictions, especially where issues affect consumers or users across the UK.
If Scotland were to adopt a domestic opt-out regime following the SCJC review, the jurisdiction could become a more streamlined and potentially more attractive forum for large collective actions. This would broaden the types of claims capable of proceeding on an opt-out basis and could increase the overall exposure faced by businesses operating in Scotland.
What does this mean in practice?
The key distinction between the jurisdictions lies not in whether collective actions can proceed, but in the potential scale of those actions.
• CAT opt-out proceedings can generate very large, automatically constituted claimant classes from the outset.
• Scotland’s current opt-in model means claimant numbers may build more gradually but still allows for significant collective actions where the underlying issues affect large groups.
• A potential future Scottish opt-out could expand this scale further and increase the attractiveness of Scotland as a forum for collective redress.
For businesses operating in Scotland, the emergence and continued development of group proceedings combined with the possibility of a future opt-out framework underscore the importance of understanding how collective litigation risks differ across the UK.
Scotland’s opt-in model therefore produces a different litigation risk profile from England’s opt-out regime: it may moderate the potential scale of the collective claims, but it does not prevent coordinated group actions where large numbers of individuals are affected.
For a detailed overview of what businesses should be doing now, see our earlier article (link here).
If you would like to discuss any of the matters mentioned in this blog, please contact our class actions lawyers, or your usual Brodies contact.
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