Following our previous articles on class actions involving energy companies, financial services, and the food and drink industry, now it's the turn of the life sciences sector to come under the spotlight. Courts throughout the UK have already seen high-profile mass litigation in relation to claims for damages against (amongst others) the manufacturers of vaginal mesh products used for the treatment of urinary incontinence or prolapse. Now, with claimants and the courts getting more familiar with the new rules in Scotland enabling class actions to be brought as a single court action under the group procedure rules, the risks facing life sciences businesses operating in Scotland are increasing.

In particular, due to the clinical development pathway for medicinal products and medical devices, manufacturers of pharmaceutical and medical device products must embrace an elevated compliance burden, navigate heightened regulatory exposure and mitigate legal thresholds of strict liability for patient injury.

Types of claims facing life sciences companies

Due to the need for potential claimants to bring claims which are sufficiently similar, class actions lend themselves to certain types of claims, many of which are particularly relevant to the life sciences sector. The most obvious of these are personal injury / product liability claims, such as the mesh claims already mentioned and litigation relating to PIP breast implants. A large number of law firms and claims management companies already operate in this space who have the resources and capabilities to "recruit" potential claimants and manage class actions.

Perhaps less obvious, though, are claims that could face companies operating in practically any sector, such as claims relating to data, privacy or cybersecurity breaches, shareholder actions, or competition claims. Subject to meeting the requirements set out in the relevant rules, such claims are all capable, at least in theory, of being the subject of Group Litigation Orders in England and Wales, or Group Proceedings in Scotland. As we have discussed previously, given the relatively recent introduction of class actions in Scotland (with only three such actions being formally underway as of 29 May 2023), this represents a changing risk landscape for life sciences businesses operating in Scotland and further afield.

What can I do to protect my business?

As we advised at the advent of the new Scottish class action rules, there are steps that all businesses can take to mitigate against the risks of facing a class action:

  • Checking insurance policies to ensure coverage for class actions;
  • Notifying insurers as soon as class actions are threatened;
  • Considering 'After The Event' insurance if no insurance is in place;
  • Engaging lawyers early, particularly if no insurance cover is in play;
  • Hiring a PR representative, given that class actions are new to Scotland and will attract press attention; and
  • Considering lodging caveats (Scotland's 'early warning system') in the Scottish courts. For more information about what caveats are and how they work in relation to class actions in Scotland, see our recent blog.


Fiona Chute

Senior Associate

Craig Watt

Partner & Solicitor Advocate

Stephen Goldie

Managing Partner