'Group litigation' or 'group proceedings' are terms used to describe actions brought, on a collective basis, by a number of people in relation to something which has affected them all in the same or a similar way. Although the ability to raise such actions has existed in various jurisdictions, including England and Wales, for some time until now, it has not been possible to do so in Scotland. That is about to change, however. After 31 July 2020, two or more people with the same, similar, or related claims will be able to raise a single action in the Court of Session.

How will the new rules work?

The new rules provide for an 'opt-in' model of group proceedings. This means that the court's ruling on a case will extend only to those who 'opted in' to the proceedings and so will not bind anyone who did not chose to take part. This means that anyone who did not 'opt in' could not rely on the decision to claim compensation. However, they would not be barred from raising an action of their own. We have discussed group proceedings in more detail in a previous blog.

What does this mean for businesses?

The ability to raise group proceedings means that actions which might not otherwise have been raised; because they were considered 'too expensive' by individual claimants could now be economic to pursue as a combined group litigation.

It is not possible to know at this stage but this ability to combine actions, and the associated costs could result in more litigation against businesses.

How can you protect your business?

We previously blogged about the benefit to businesses and individuals of having caveats in place. Claimants wishing to raise a group action need permission from the court and a caveat may now be lodged against such an application. This is useful because under the new rules, it is possible for a group of claimants to obtain permission for a group action, without the knowledge of the defender. If there is a caveat in place, a defender will receive notice of the application and the opportunity to make representations, before the application is decided by the court.

What if I already have a caveat lodged?

Existing caveats will not be triggered by an application for permission to bring group proceedings against your business. Accordingly a new caveat is required to provide such protection.

Brodies offers a full caveat service and can provide advice and draft and lodge caveats on your behalf. Once we lodge a caveat for our clients, one of our lawyers is always on call in the event that the caveat is triggered. We also employ a free caveat renewal monitoring system, to enable continuous protection (if required).