Introduction
2025 marked a period of maturity for Scottish group proceedings, with several Court of Session decisions ruling on its operation after five years in existence. This increased activity aligns with rising public awareness, with City AM recently reporting that the UK public's recognition of 'class actions' is at its highest level since 2020.
As understanding grows, claimant groups are becoming increasingly confident using the Chapter 26A procedure - increasing litigation risk for businesses (particularly in consumer-facing industries). This article provides a timely overview of recent decisions relating to group proceedings in Scotland and their impact for those involved.
Clarifying preliminary applications:
Joseph Mackay v Nissan Motor Co Ltd and Others [2025] CSIH 14 / Milligan v Jaguar Land Rover Automotive plc [2025] CSIH 16
As many are aware, prospective claimants must seek permission from the court to initiate group proceedings in Scotland. This initial step is designed to root out claims which clearly should not be brought under Chapter 26A and is comprised of two applications: (1) that the representative party is suitable; and (2) that there is sufficient commonality and a prima facie case.
Two Inner House (i.e. appeal) decisions, Mackay and Milligan, shed light on the court's interpretation of the preliminary applications. We now know that the applications are to be applied sequentially in that the representative party application must be granted before consideration turns to commonality and a case's strength. The judgments also held that the assessments are a matter of judicial discretion and cannot be easily appealed.
Mackay and Milligan also marked the beginning of a defining precedent set in 2025: that preliminary applications are not 'high hurdles' and should be applied flexibly by judges. While the court acknowledged that the preliminary stage functions to evaluate the appropriateness of a group claim, it was not designed to be an insurmountable barrier.
For instance, the decisions clarified that the suitability of a representative party must be assessed holistically rather than with a strict application of the criteria in RCS 26A.7. Furthermore, claims do not have to be identical to have a permissible level of similarity to progress. Nor do written pleadings need to be fully developed, as the court is merely assessing whether there is a 'serious question… to be tried' rather than performing any substantive assessment at this early stage.
Focusing defender effort:
Bell v Volvo Car Corporation and Others [2025] CSOH 64
The low threshold for permission set in Mackay and Milligan was reinforced in the July decision of Bell, where the court emphasised that the Chapter 26A procedure was intended to improve access to justice and potential claims should not be derailed by technicalities when seeking permission.
The court has clearly adopted a pragmatic approach to permission. As the judge noted in Bell, the preliminary stage is not fertile ground for procedural objections, with the climate for defenders doing so described as 'bracing'.
As matters currently stand, defenders should therefore recognise the likely difficulty of opposing a group claim at the permission stage and instead focus on substantive preparation and careful analysis of evidence and strategy from the outset.
Maintaining policy objectives:
Michelle Donnelly v Johnson and Johnson Medical Limited [2025] CSOH 77
Nevertheless, another 2025 decision provided hope for defenders looking to use the preliminary safeguards to their advantage. In a first for Scotland, the Outer House refused permission for an action to progress as a group proceeding, as discussed in our recent article here.
The court here found insufficient commonality among claims, noting that significant differences would hinder the efficient use of expert evidence. A small group size further undermined efficiency, making individual actions more appropriate.
This decision highlights the need for applicants to demonstrate clear common issues and procedural benefits in order to be granted permission. For defenders, Donnelly signals that weaknesses such as group size and factual divergence remain viable grounds for objection at an early stage, particularly where they cut against the policy objective of efficiency.
Document recovery in group proceedings:
Batchelor v Opel Automobile GmBH and Others [2025] CSOH 18
Beyond preliminary applications, Batchelor examined the court's powers on document recovery under Chapter 26A. Lord Sandison confirmed that these powers are extensive (comparable to those in commercial and IP actions) and exceed standard commission and diligence (document recovery) powers under ordinary procedure.
On the issue of the prospective costs of complying with the order, Lord Sandison pronounced that he did not accept that there is any general rule of law, even in the context of the grant of commission and diligence, that a party to an action is entitled in the first instance to payment or security from his opponent in respect of the costs of complying with an order for the recovery of documents. This is an innovative approach and was stated to be afforded to the judge under his wide general discretion under Chapter 26A.
Crucially, the decision in Batchelor also emphasised the general power under RCS 26A.27 which allows a judge to make any order they believe is necessary to secure a fair and efficient determination of a group proceeding. It will be interesting to monitor how RCS 26A.27 is used in future decisions to assist with interpretation of other Chapter 26A rules.
Opt-in or opt-out? Scottish Civil Justice Council consultation
Finally, we close by looking at a potentially seismic change to Scottish group procedure currently under consideration. The Scottish Civil Justice Council (SCJC) recently closed a call for evidence as part of a wider consultation on Chapter 26A which, most notably, will consider whether to allow 'opt-out' group proceedings in Scotland.
Despite legislation already allowing for opt-out class actions, which automatically includes all potential claimants, current rules only provide for a group proceeding on an opt-in basis, which requires potential claimants to sign up to proceedings. The SCJC now believes it may be time to bring the legislation into full effect.
While opt-out would improve the ability of claimants to raise group proceedings, there is concern that the change would mainly benefit litigation funders and dramatically increase demand for limited court resources. Indeed, similar concerns prompted the UK government to open a review into the operation of pre-existing opt-out rules in the Competition Appeal Tribunal. We explore the case for the SCJC to adopt a balanced approach in a recent insight piece here.
It will certainly be important to keep abreast of developments in this rapidly evolving area throughout 2026 and beyond.
This article was included in our Litigation in Scotland Report 2026 - read the full report here.
