2025 saw a wide range of litigation taking place in the Scottish courts. In this article, we look at the key trends in litigation in Scotland and what the future holds.
Group proceedings
Group proceedings continue to be a fertile ground for litigation. In particular, there have been several diesel emissions claims raised. These have resulted in decisions being issued on permission to bring group proceedings and the appointment of a representative party. At the end of 2025, Jaguar Land Rover Automotive Plc and others were refused permission to appeal the decision on both these points to the Supreme Court.
Public inquiries
Public inquiries came under scrutiny in Scotland in 2025, with the highly publicised collapse of the Sheku Bayoh inquiry in October 2025. In addition, the cost of inquiries has been highlighted, with an inquiry into the cost effectiveness of inquiries. The report and recommendations were published on 21 December 2025. The recommendations include setting timescales and creating a central budget for public inquiries. Recently published figures showed the total cost of inquiries since 2007 to September 2025 had exceeded £250 million.
Judicial review
Challenging decisions by way of judicial review continues to be a significant part of the Scottish litigation landscape.
We had been waiting for decisions on the application of the Non-Domestic Rates (Miscellaneous Anti-Avoidance Measures) (Scotland) Regulations 2023 and then, like buses, three came along at once. The judgments all related to various councils’ decisions to find landlords liable for non-domestic rates. The judgments provided clarification on the interaction between the Regulations and the Non-Domestic Rates (Scotland) Act 2020, as well as the approach the courts will take.
As highlighted in last year’s report, judicial review continues to be used in ESG cases and the much-anticipated decision in the Rosebank and Jackdaw cases brought by Greenpeace and Uplift was published at the beginning of the year.
Time bar
Prescription (time bar) continues to be a thorny issue in Scotland. In a landmark decision earlier this year in a dispute about a collateral warranty, Legal and General Assurance (Pensions Management) Ltd v the Firm of Halliday Fraser Munro and Others [2025] CSIH 24, the Inner House determined that a collateral warranty was not subject to the same time bar as applied to the original contract. This meant a new five-year prescriptive period applied to the warranty and represented a notable shift from previous determinations on collateral warranties. Permission to appeal the decision to the Supreme Court was recently refused by the Inner House.
In another case involving time bar issues, Tilbury Douglas Construction Limited v Ove Arup & Partners Scotland Limited [2024] CSIH 15, the correct interpretation of sections 6(4) and 11(3) of the Prescription and Limitation (Scotland) Act 1973, before the changes made by the Prescription Act 2018, was in dispute. However, the appeal to the Supreme Court has recently been withdrawn. Disputes about interpretation of the legislation will continue to be the subject of litigation.
Increase in the number of court actions
Statistics published by the Scottish Courts and Tribunals Service indicate that the number of civil court actions raised in the Court of Session and the All Scotland Personal Injury Court continues to increase year on year. The number of intellectual property cases raised in the Court of Session has also risen over the last few years. However, the number of sheriff court actions remains below pre pandemic levels.
On the ground, we have also seen an increase in breach of warranty claim enquiries over the course of the year. This is likely to be due to a tighter economic climate, meaning businesses are adopting more aggressive litigation strategies.
What does the future look like for litigation in Scotland?
Group proceedings
This will continue to be a growth area in litigation in Scotland, with other types of claims, such as data breaches, being raised as group proceedings. In addition, given the number of existing claims, this will remain an evolving landscape.
The legislation that introduced opt-in group proceedings also allowed for opt-out proceedings in Scotland, but this has not yet been brought into force. The Scottish Civil Justice Council (SCJC) has issued a call for evidence on whether opt-out proceedings should be allowed in Scotland. If opt-out proceedings are introduced, this would herald a significant change in Scottish litigation, as well as having a wider impact across the UK.
Modes of attendance
The SCJC has also issued a call for evidence on mode of attendance at court hearings. This is considering the court rules that govern whether hearings are held in person or virtually. Currently, the rule of thumb is that procedural hearings are held online, while substantive hearings are heard in person, although it is also possible to request a hybrid hearing. It remains to be seen whether there will be a change to the court rules and possibly a greater emphasis on in person hearings.
Protective expenses orders in environmental claims
In 2025, the SCJC consulted on protective expenses orders and sought views on extending costs protection against an adverse award of expenses in environmental actions to the sheriff court. Currently, this protection for claimants is only available in the Court of Session.
On 20 January 2026, the SCJC announced that it had decided to extend the availability of costs protection to cover all types of civil procedure that challenge an act or omission regarding the law relating to the environment, except for group proceedings. There will be a further consultation on the proposed rules in June 2026. The revised proposal could increase environmental litigation.
Transferred loss
Forthwell v Pontagadea UK Ltd [2024] CSIH 38 is due to be heard in the Supreme Court in March 2026. This case concerns transferred loss, where a party to a contract seeks to recover losses suffered by a third party, and the extent to which this principle exists in Scots law. The Supreme Court’s decision should provide further clarity. If it confirms the principle is recognised in Scotland, this is likely to open the door to more of these types of claims.
It is clear that, with the increased use of judicial reviews, public inquiries and group proceedings, Scottish litigation continues to evolve and this looks set to continue for the foreseeable future.
