With Christmas fast approaching, we've decided to perform a festive thought experiment: what would Santa's Elves need to do in order to bring a class action against Santa Claus in the Court of Session? In this imagined world, Santa's workshop is in the far north of Scotland, where the Elves have been working hard with old and poor-quality tools and machinery, leading to lots of workplace injuries. They want compensation from Father Christmas himself as their employer. I know, how very Christmassy of us.

There are several hurdles the Elves will need to overcome just to get to the stage of formally commencing the action.

1. Get permission from the court for a representative party to be appointed

The Elves will have to choose either one of their number or a third party (for example, the Union of Elves & Reindeer) to apply to the Court of Session in Edinburgh for permission to be the group's Representative Party, i.e. to make claims on behalf of members of the group and do anything else in relation to those claims that the members of the group would have been able to do if they had brought separate proceedings. Let's say they choose the most famous elf of all: Buddy.

Before the court can decide if Buddy is a suitable Representative Party, his Application (along with various other papers, including a Summons setting out the claims in detail) will have to be sent to Santa, who will be given the opportunity to lodge written objections to the Application, called Answers. The judge will then hear legal arguments from both the Elves' and Santa's Counsel as to why or why not Buddy should be appointed as the Representative Party.

In making its decision, the court will consider the factors listed in rule 26A.7(2)of the Rules of the Court of Session 1992:

(a) the special abilities and relevant expertise of the applicant;

(b) the applicant’s own interest in the proceedings;

(c) whether there would be any potential benefit to the applicant, financial or otherwise, should the application be authorised;

(d) confirmation that the applicant is independent from the defender;

(e) demonstration that the applicant would act fairly and adequately in the interests of the group members as a whole, and that the applicant’s own interests do not conflict with those of the group whom the applicant seeks to represent; and

(f) the demonstration of sufficient competence by the applicant to litigate the claims properly, including financial resources to meet any expenses awards (the details of funding arrangements do not require to be disclosed).

Often, it is paragraph (f) that is the subject of most discussion in court. Buddy will need to show that he, on behalf of the group, has the resources to conduct the case and also to pay Santa's legal costs if the Elves' claims were to fail. Many groups are backed by third party funders or make use of After The Event insurance policies in order to help them clear this hurdle. 

2. Get permission from the court to bring Group Proceedings

Let's assume the court grants Buddy's application to be the Representative Party for the group of injured Elves. What next?

Buddy must make another application, this time for permission to actually launch group proceedings (although he can do it at the same time as the Application to be appointed as the Representative Party). Again, this Application will have to be served on Santa in advance so he can lodge Answers and be represented at the court hearing.

The court can only refuse the Application on certain grounds, which are:

  • That not all the claims made in the proceedings raise issues (whether of fact or law) which are the same as, or similar to or related to, each other.
  • The representative party has not made all reasonable efforts to identify and notify potential members of the group about the proceedings.
  • There is not a prima facie case.
  • It has not been demonstrated that it is more efficient to bring group proceedings rather than individual proceedings.
  • It has not been demonstrated that the proposed proceedings have any real prospects of success.

So if an elf who has not been injured, but has another gripe with Santa (let's say she's had her pay docked for reasons she thinks are unlawful) appears in the group, the judge will refuse permission because claims for personal injury and claims for unlawful deductions from wages are not sufficiently similar in fact and law.

Likewise, if Buddy has failed to notify all of the injured Elves of his intention to bring group proceedings so they all have a chance to opt in, the judge might send him away to do some advertising, perhaps in the local press, to encourage them all to come forward.

If Buddy is successful in his Application, then Group Proceedings will officially be underway. Santa will need to lodge formal written defences to the Summons, and (after various preliminary and procedural hearings) there may well ultimately be a proof (trial) to decide if Santa is liable to pay compensation to the Elves and if so, how much.

Let's hope they can settle before it gets to that – elves that are busy with litigation have less time for toy-making!

*(Sing the title to the tune of the "Five Gold Rings" bit in the carol the Twelve Days of Christmas - it just about fits, I promise).


    Fiona Chute

    Senior Associate

    Craig Watt

    Partner & Solicitor Advocate

    Stephen Goldie

    Managing Partner