Group Proceedings in Scotland: Caveats in Group Litigation

As regular readers of our blogs will know, a 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.

How do caveats work in group proceedings?

We've also previously blogged about caveats, an "early warning system" unique to Scottish litigation. Wherever a caveat is lodged at a court in the name of a party, the court must give that party's solicitor advance notice (although this may only be 24 hours or so) before any application for an interim court order (such as an interdict, the Scottish equivalent of an injunction) against that party can be heard. This gives the party the chance to attend the hearing and oppose the order. If no caveat is lodged, such orders can be granted against a party in their absence.

In relation to Group Proceedings, caveats provide even more protection, provided the caveats are drafted in a particular way. If such a caveat is in place, a potential defender will receive notice of any application made by a group of pursuers for permission to serve group proceedings. They will accordingly have the opportunity to make representations before the application is decided by the court.

This means that if there have been, for example, procedural deficiencies in the steps taken by the group of pursuers prior to that point, the potential defender may be able to persuade the court that permission should not be given, even for the group of pursuers to serve the formal applications to bring group proceedings, nor to appoint a representative party to act on behalf of the pursuers, on the potential defender. Whilst the group of pursuers could then attempt to cure any procedural failures and try again, the opportunity to delay this might be useful.

What if I already have a caveat lodged?

Existing caveats that have not been drafted so as to refer to the Group Procedure rules will not be triggered by an application for permission to bring group proceedings against your business, and, therefore, you would not receive the notice set out above. A new caveat is required to provide such protection.

Brodies offers a full caveat service and can provide advice, 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).