Designing the Future of Scottish Class Actions: What Businesses Should Be Doing Now

Introduction

With the Scottish Civil Justice Council’s call for evidence closing on Friday, 23 January 2026, the window for Scottish businesses to influence the potential shift from an opt-in to an opt-out model is rapidly closing.

This consultation represents a significant moment for businesses operating in Scotland. The policy choices made now will shape how group claims are structured, funded, and managed in the years ahead — with direct implications for scale, cost and litigation risk.

This is not a purely technical exercise. For businesses, it is an opportunity to influence how collective litigation risk develops in Scotland. In this article, we set out a practical checklist to help businesses engage with the consultation questions, alongside a view of how group litigation risk is likely to evolve through 2026 and beyond.

For a detailed overview of the group proceedings regime, the issues under consultation, and their potential impact on businesses, see our earlier article (link here).

Why this consultation matters

The SCJC consultation does not sit in isolation. It forms part of a broader, UK-wide reassessment of how collective actions should operate and the role they play in the civil justice system.

At a UK level, the Department for Business and Trade (DBT) has recently consulted on the operation and impact of the existing opt-out collective actions regime for competition claims. That call for evidence, which closed in October 2025, reflects growing scrutiny of how opt-out models affect access to justice, litigation funding, settlement dynamics, and overall business exposure.

For a detailed overview of the DBT Consultation, see our earlier Brodies’ article (link here).

The parallel consultations point to a clear direction of travel. Policymakers across jurisdictions are actively considering whether opt-out collective mechanisms should play a greater role, how they should be controlled, and how risks for both claimants and defenders should be balanced.

For Scottish businesses, this makes engagement with the SCJC consultation particularly important. Decisions taken now will not only influence the shape of Scottish group proceedings, but may also inform how Scotland aligns with, or diverges from, wider UK collective redress models. In practical terms, this is about how quickly claims can scale, who can drive them, and how predictable the outcomes will be for businesses facing group litigation.

A practical checklist for engaging with the SCJC consultation

The Scottish Civil Justice Council consultation asks a series of targeted questions about how group proceedings should operate in future. For businesses, the most useful way to approach those questions is through the lens of operational and litigation risk, rather than procedural detail.

Set out below are key areas businesses should consider when preparing a response.

1. Who should be allowed to act as a representative party?

One of the central issues under consultation is whether representative parties should be limited to members of the group, or whether non-members (such as third-party organisations or professional representatives) should be permitted.

Businesses should consider:

• whether allowing non-member representatives would increase the likelihood of claims being brought;
• whether claims could be driven by entities with no direct commercial relationship to the business; and
• how this might affect early engagement, settlement discussions, and reputational risk.

2. The potential move from opt-in to opt-out proceedings

The consultation explores whether Scotland should move towards an opt-out model, under which affected individuals are automatically included unless they take steps to exclude themselves.

Businesses should consider:

• how easily they could identify a defined class of affected individuals;
• whether current systems allow for early identification of affected customers, users or counterparties; and
• how a sudden increase in claimant numbers might affect cost, disclosure obligations, and settlement pressure.

3. How settlements and damages should be distributed

The SCJC is also consulting on how damages should be distributed in group proceedings, including the treatment of unclaimed sums.

Businesses should consider:

• whether prolonged court oversight of settlement distribution could delay final resolution;
• how uncertainty around unclaimed funds may affect settlement strategy; and
• whether distribution mechanisms could create additional cost or complexity beyond the core dispute.

4. Case management, disclosure and data readiness

Group proceedings place particular emphasis on efficient case management and the handling of large volumes of data. Data readiness is increasingly a determining factor in how defensible a group claim is in practice. The consultation raises questions around how this should be controlled by the court.

Businesses should consider:

• whether relevant data is retained, accessible, and auditable;
• who internally owns and manages that data; and
• how quickly meaningful disclosure could be provided on a group-wide basis.

Responding to the consultation does not require a legal or technical submission. Well-informed, commercially grounded responses from businesses are likely to be influential, particularly where they explain how proposed reforms would operate in real-world scenarios.

Even where a business chooses not to submit a response, working through the consultation questions provides a useful framework for assessing future exposure to group litigation risk.

Looking ahead: how litigation risk is evolving

Whatever the outcome of the consultation, the direction of travel is clear. Group proceedings in Scotland is becoming more structured, more commercially driven, and increasingly visible to third-party litigation funders.

Scotland is already attracting attention in this space. Compared with England, the Scottish landscape offers a developing group proceedings regime, the restricted use of juries in civil claims, and a costs environment that can be more predictable for funders assessing risk and return.

The combination of procedural momentum, judicial openness to collective claims, and limited regulatory oversight of funding, makes Scotland an increasingly attractive forum for professionally backed group litigation. As a result, claims are likely to be identified earlier, structured more strategically, and pursued with greater coordination.

For businesses, this reinforces the need to treat group litigation risk as part of wider risk and governance analysis, rather than a niche procedural issue. Data readiness, disclosure strategy, and early settlement planning are likely to play a greater role in how exposure is managed in practice.

The SCJC consultation closes on 23 January 2026. It is more than a procedural milestone, it is a practical opportunity for businesses to influence the future shape of collective litigation in Scotland, and to ensure they are prepared for the environment that follows.