Opt-out class actions: huge changes on the horizon in Scotland?

Opt-out class actions: huge changes on the horizon in Scotland?

On 24 October 2025, the Scottish Civil Justice Council issued a call for evidence about the potential introduction of an ‘opt-out’ procedure for group proceedings in Scotland: Group Procedure Call for Evidence

The statutory framework

Class actions (known as ‘group proceedings’) were introduced to Scotland in 2018 by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. The Scottish Parliament allowed for the possibility of group proceedings being brought on both an ‘opt-in’ and an ‘opt-out’ basis and established a complementary framework for litigation funding. However, it left the final decision about the types of claims which could be brought in group proceedings, and the basis on which group proceedings could be brought, to the SCJC and the Lord President of the Court of Session.

Initially, they made provision for an ‘opt-in’ procedure, where individuals forming part of the relevant group must take active steps if they wish to join the proceedings. It can be found in Part 4 of Chapter 26A of the Rules of the Court of Session and allows group proceedings to be brought for any type of claim.

As noted in the SCJC’s call for evidence, this ‘opt-in’ procedure came into force in 2020, but the SCJC deferred consideration of the introduction of an ‘opt-out’ procedure until sufficient experience had been gained from progressing ‘opt-in’ actions. In an ‘opt-out’ procedure, all individuals in the relevant group in Scotland will automatically be included within the group proceedings unless they opt out, together with any individuals outside Scotland who choose to participate.

Since then, relatively few cases have proceeded under the Rules, although the Court has generally adopted a permissive attitude to group proceedings. For further commentary on group proceedings in action to date, please visit: Class Actions | Brodies LLP

However, in a development which indicates that group proceedings in Scotland are gaining traction, the SCJC has recently established a working group to explore an extension of the rules in Chapter 26A to introduce an ‘opt-out’ procedure. The SCJC has issued its call for evidence to anyone who has an interest in group proceedings, noting that the responses which it receives will inform its consideration of the matter.

Potential impact

The introduction of a broad ‘opt-out’ procedure would have a significant impact on the class actions landscape in Scotland, not least because there is not currently an equivalent opt-out procedure in England and Wales (except in competition cases). It would lead to a major divergence between the two jurisdictions. Although there will be pros and cons to the introduction of an ‘opt out’ procedure, the automatic inclusion in the proceedings of all individuals falling within the relevant group will result in larger groups and higher value claims. In those circumstances, and given the appealing funding environment, claimants, lawyers, and funders will likely find it more attractive to pursue group proceedings in Scotland, which could lead to a sharp increase in the number of actions raised under the Rules. That would in turn mean a huge increase in litigation risk for businesses and public sector organisations operating in Scotland, particularly those with large numbers of customers, service users, or employees.

We expect there will also be a wider impact across the rest of the UK. The divergence between Scotland and the other jurisdictions might well lead to pressure for an equivalent ‘opt-out’ procedure to be introduced across the UK as a whole.

We anticipate that there will be no shortage of interested parties who wish to make representations (either directly or through their solicitors) in response to the call for evidence, whether that is to voice support for the introduction of an ‘opt-out’ procedure, to seek to ensure that it is implemented in a way which will best protect their interests, or to oppose its introduction altogether.

Should you wish to discuss the potential impact of the introduction of an ‘opt-out’ procedure in Scotland (or group proceedings more generally) and/or to make representations to the SCJC’s working group for consideration, please reach out to your usual Brodies contact. The call for evidence will close on Friday 23 January 2026. Accordingly, any representations will need to be made in advance of that date if they are to be considered.