Group proceedings were introduced in Scotland in 2018 to allow similar civil claims to be brought together and pursued by a single representative. While the procedure has been used in several cases, a recent Court of Session decision (Michelle Donnelly v Johnson & Johnson Medical Limited [2025] CSOH 77) refused permission for the first time. The decision provides useful insights for those commencing group proceedings.
The application
As group proceedings deviate from ordinary procedure, pursuers (i.e. claimants) must apply for court permission to continue under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. The burden is on them to justify why the court should allow the claims to use this alternative procedure.
In Donnelly, seventeen individuals applied to bring claims for injuries allegedly caused by the implanting of hernia mesh products manufactured by the defender. Despite there being five different hernia mesh products involved, the application argued that they all shared a common basis: “claims arising in Scotland from the use of certain hernia mesh products manufactured by the defenders.”
The court takes a two-step approach to granting permission: first, it must approve the chosen representative (which was successful in Donnelly) and then assess whether the use of group proceedings is justified in accordance with judicial tests. Claimants must demonstrate a prima facie case, sufficient commonality and that the use of such procedure is more efficient than continuing as separate actions.
The applicants argued that progressing these claims as group proceedings would improve efficiency by reducing the number of separate claims and avoiding repetition of general medical evidence. A joint expert medical report on the impact of mesh implants was lodged in support of this position.
However, permission was refused. In coming to its decision, the court noted that the pleadings were too broad and underdeveloped to show that group proceedings would be more efficient than individual case management. There was also a need for individual risk analysis due to fundamental differences between claims.
Greater commonality = Greater efficiency
A key takeaway from the decision centres on the interrelated nature of commonality and efficiency at application stage. Through a dynamic analysis, the court demonstrated that there is a threshold level of commonality below which there is a direct impact on the efficiency of group proceedings.
The court held that claims must share at least one factual or legal issue in satisfaction of the commonality test and went on to outline some general similarities (such as all involving hernia mesh implants). However, whilst the court noted that claims do not have to be identical, it emphasised "significant differences" that undermined the efficiency of continuing by way of group proceedings.
The court held that key issues across the claims would need to be specified in each claim's pleadings and require an individualised judicial assessment as the claims progressed:
- Defects of each device
- Individual injuries
- Causation
- Quantum (damages)
- Prescription or limitation (i.e. time bar) defences
Taken together, these variations prevented the court from applying evidence across claims. This was a crucial reason for refusing the application. The decision reinforced the link between commonality and efficiency, as the very nature of these differences had a direct impact on the efficient management of these claims as a group. Those drafting pleadings must therefore ensure all commonalities are brought to the fore as specifically as possible from the outset.
Getting too small
The decision also provided important guidance as to the relevance of the number of claims involved in a group proceeding application and how this factor increases the court's scrutiny when applying the judicial tests.
The court acknowledged the utility of group proceedings by underlining the "huge benefit" of such procedure in cases involving thousands of similar claims. However, according to the court, the logical consequence of this view is that efficiency gains diminish with fewer claimants. This demonstrates the dynamic nature of the group proceedings assessment.
In the same vein, the court noted that removing even a single claim could undermine the rationale for group proceedings in Donnelly. Whilst a prescription defence itself would not ordinarily be fatal to an application, in the context of a smaller group, this issue carries more weight due to the risk of a further reduction in group size causing inefficiency.
The court therefore used the relatively small group size as the lynchpin of its decision and ultimately revealed an important principle: the smaller the group, the stricter the approach to permission. Applicants must consider whether the number of claims would make the procedure a genuinely more efficient use of limited court resources.
This article was co-authored by Josh Chambers, Trainee Solicitor in MFMac's Litigation team.
