How do the Scottish Courts manage Group Proceedings?

Group proceedings, otherwise known as class actions, were introduced in Scotland in 2020 to allow multiple claims raising the same or similar issues to be brought together in a single action. The Court of Session is the competent forum for raising group proceedings. The orders available to the Court once group proceedings are underway are central to how these cases are managed in practice. The judge appointed in a class action has broad power to make any order they consider necessary to ensure the case is handled fairly and efficiently. This blog outlines the common types of orders the Court may make in any group proceedings action.

A flexible, court‑led procedure

Chapter 26A of the Rules of the Court of Session gives the Court wide discretion concerning how group proceedings are conducted. Unlike ordinary actions, there is no fixed procedural template which every case must follow. Instead, the rules expressly provide that the procedure is to be “such as the Lord Ordinary is to order or direct” (rule 26A.3(1)). This flexibility favours expediency and limits costs so far as possible, similar to commercial actions in the Court of Session.

Orders at the outset

Before group proceedings can progress, the Court must make two key orders. First, to authorise who will be the representative party, who acts for the whole group opting in to the proceedings. The Court must then grant permission for the proceedings to be brought as group proceedings in accordance with section 20 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.

At this preliminary stage the question is not whether the claim will ultimately succeed on the merits, but, rather, whether it is appropriate to allow the action to proceed as a group proceeding. The Court will typically consider whether the proposed group description is workable, whether the representative party is suitable and adequately independent, and whether the proposed arrangements would allow the action to be progressed appropriately.

Orders relating to the group register

The Court also exercises control over the group register, which records the parties who have opted in to the proceedings. Orders may be made:

• Regulating the form and maintenance of the register.
• Allowing additional parties to join within a specified period.
• Removing parties from the register where appropriate.

This gives the Court an ongoing supervisory role in defining the scope of the group proceedings.

Advertisement of proceedings

The Court may order advertisement of the proceedings to potential group members; this includes the form and timing of any publicity. The decision whether, and how, to advertise is a matter for the Court’s discretion and is typically addressed at an early stage. This is a distinctive feature of group proceedings and can have significant reputational implications for defenders.

Case management and procedural orders

Once permission is granted to allow the group proceeding to progress, the Court has extensive powers to make case management orders. These may include:

• Fixing timetables and diets (hearing dates).
• Regulating the adjustment of pleadings – adjustment is not automatically awarded in group proceedings; parties must therefore ensure their initial written cases are adequately comprehensive.
• Determining how evidence is to be recovered and presented.

Substantive and final orders

As with other actions in the Court of Session, the Court may ultimately make:

• Orders determining liability on the key issues in dispute.
• Directions for the assessment of individual claims or damages.
• Decrees of absolvitor (dismissing claims) or decree for payment.

Key Takeaways

The Court’s broad powers mean that, in group proceedings, the momentum of the action will be kept flowing. Early orders on case management, publicity, and the scope of the group can impact cost, reputational exposure, and settlement pressure. Businesses that engage early and help shape a proportionate procedural framework are far better placed to retain control of group proceedings, rather than reacting to it once momentum has built.