The Scottish Government has set up a public inquiry to investigate the handling of the COVID-19 pandemic in Scotland and learn lessons from it. The scope of the inquiry includes investigating the care provided in care and nursing homes.

The inquiry will consider what worked well, what could have been done better and make recommendations. Much of the evidence considered will be made publicly available. This evidence and any corresponding findings could be considered in potential civil claims. This may provide another reason for care home providers, and/or their insurers wishing to have their views represented in the inquiry.

With the increase in the number of class actions raised against UK companies, its possible such civil claims will be brought together in one action. In the last 12 months there has been a 10% increase in the number of class action lawsuits raised around the world against FTSE 100 companies.

A recent report, produced by Thomson Reuters, details that the UK's leading companies have faced 170 class actions over the last year, as compared with 155 class actions in the previous year. FTSE 100 companies operating in the United States will no doubt be familiar with class action culture in many countries around the world. In the last year, 67% of all class action claims raised globally were brought before US Courts.

In the UK, corporates may not be aware that class action procedure is gaining traction as an increasingly popular method of achieving redress across the world. The analysis suggests that this is a threat to organisations, even those operating solely within the UK. Nine of the class actions raised against FTSE 100 companies in the last year were raised in the Courts of the United Kingdom. Indeed, recently, settlement of car emission cases has hit the headlines.

In the summer of 2020, group claims procedure came into force in Scotland, which enables groups of two or more people with the same, similar, or related claims, to unite to raise proceedings in a single action in the Court of Session. We previously considered what organisations and business should do to prepare for this new litigation landscape.

This trend and change in procedure supports the view that claims against care homes relating to COVID-19 could be brought as a class action. However, pursuer firms will need to carefully consider whether it is appropriate to group such proceedings together. Earlier this month the High Court in England considered striking out an action, after a judge criticised grouping 3,500 pursuers into one claim form. That action related to individuals seeking compensation for hearing damage caused by military service. In the judge's opinion it was not appropriate to select 16 lead claims for trial, as it would not fully resolve the remaining claims.

This changing legal landscape is something for care home providers and their insurers to be live to particularly when taking into account the potential evidence that may be heard at the forthcoming inquiry.

Contributors

Stephen Goldie

Head of Litigation & Partner

Lynn Livesey

Legal Director