Group Proceedings in Practice

A Practice Note to advise practitioners on the conduct of group proceedings in the Court of Session emphasises the need for efficiency.

As set out in our previous blog, "Coming soon – Class actions in Scotland", group claims procedure came into force in Scotland on 31 July 2020. The procedure allows groups of two or more people with the same, similar, or related claims, to unite to raise proceedings as a single action in the Court of Session.

Practice note

The Lord President has issued Court of Session Practice Note 2 of 2020 – Group Proceedings under Chapter 26A, to inform practitioners of the conduct the Court of Session expects in the progress of group proceedings. The Practice Note has effect from 28 September 2020.

• The Practice Note suggests that group proceedings will proceed in much the same way as commercial actions.

• Applications to be a representative party and to bring group proceedings are to be made by Motion, which will be heard before calling.

• Service of the applications will happen separately and distinctly from service of the other papers under the rule.

• Advertisement of the applications will be considered by the Lord Ordinary. It is expected that the applicants will aver, in detail, what advertising has already been undertaken, if it is to be submitted that no further advertising is required.

• Where a number of legal firms are instructed on behalf of the group members, it is expected that the firm acting for the representative party will be designated the lead.

• The Lord Ordinary requires to be satisfied of the suitability of an applicant to be a representative party. It is emphasised that this will require to be brought out in detail. It will not be enough to repeat the wording of the rule. This is likewise the case for applications for permission to bring proceedings.

• The register of group members is considered crucial to the operation of group proceedings, so it is emphasised that the key to the success of the procedure is the administration of that group register by the representative party. There is an expectation that the group register will be lodged in electronic form, in PDF format, with sufficient data protection measures in place. The group register lodged must be in full form and updated to contain details of all members of the group following any changes to the group's membership.

• Group proceedings are commenced with reference to the service of the Summons, group register and other papers on the defender. This will precede any consideration by the court of the applications for the appointment of a representative party or for permission for the matter to proceed by way of group proceedings. If the application to allow the matter to proceed by way of group proceedings is refused, the proceedings will not have been commenced.

• The group proceedings judge has the power to order parties to hold a joint meeting and it is likely that this will be ordered in most cases.

Conclusion

The Lord President has emphasised that the efficiency of the conduct of group proceeding must be paramount. It is implied that the court expects that one of the pursuer's agents will be designated as lead. With many pursuer firms jockeying to be at the vanguard of group proceedings, we may see an artificial separation of groups to enable separate applications to be made by a number of different pursuer firms. Whether or not that is in the interest of the efficient disposal of the matters in dispute remains to be seen.

We continue to monitor the group proceedings landscape in Scotland and will keep you updated.