Recent Scottish case law has clarified the operation of the group proceedings regime introduced in Scotland in 2020, as explored in our recent update, Scottish group proceedings applications. The Chapter 26A procedure allows multiple civil claims sharing fundamental similarities to be raised together, with a view to enabling actions that might otherwise be uneconomical on an individual basis to proceed, and with the aim of achieving consistency, efficiency and a modernised class action procedure.
The Scottish Civil Justice Council (SCJC) is currently considering whether to develop the group proceedings rules further, with a call for evidence having recently closed to submissions on 23 January 2026. The consultative process will help inform the SCJC’s decision on whether, among other issues, to (i) introduce an opt-out model for group proceedings in this jurisdiction (to operate alongside the current opt-in procedure), and (ii) amend the rules in relation to class action funding and distribution/settlement.
The opt-out model
Opt-out class actions allow claims to be brought on behalf of all persons falling within a defined class unless they expressly opt out, with those included being automatically entitled to damages should the claim be successful. There is a view that this model is necessary for large-scale claims, to maximise policy effectiveness and reduce barriers to justice.
However, for potential defenders, this automatic approach poses litigation risk if the claimant pool is maximised by default from the outset of an action.
Opt-out collective action claims are available in some jurisdictions, including UK competition law cases before the Competition Appeal Tribunal (CAT). A recent settlement arising from an opt-out claim at the CAT is timely in the context of examining the potential Scottish group proceedings landscape, should the SCJC’s consultation lead to the adoption of such a model.
Expanding classes
McLaren v MOL (Europe Africa) Ltd and others involved a group claim against maritime car carriers seeking to recover losses caused by the alleged overpayment of vehicle shipping charges due to uncompetitive supplier cartel activity. The recently reported settlements in this case saw business entity claimants benefit from an opt-out group claim for the first time, with the outcome heralded as an indicator of the procedure broadening access to redress for those unable to bring a claim on an individual basis.
The sums involved in the McLaren settlement are significant – around £93 million, including at least £34 million in costs.
This may deter inward investment into the Scottish economy, with businesses reluctant to enter the market and expose themselves to class actions that could automatically involve millions of consumers and businesses falling within the relevant class. Furthermore, corporate risk assessments may become increasingly complex if market data is unable to accurately identify the number of potential claimants.
Claimants beware
Conversely, there is growing concern that sums arising from group claims (whether through damages or settlement) fail to reach claimants themselves. As a result, the SCJC is also seeking views on amending the distribution rules for Scottish group proceedings. A significant proportion of financial redress is typically allocated to legal costs and fees prior to wider distribution, and this was also the case in McLaren.
Claimant groups have expressed concern that opt-out proceedings may lead to disproportionate windfalls for unregulated litigation funders, to the detriment of those who actually suffered loss.
Getting the balance right
Whatever the outcome of the SCJC’s call for evidence, any reform of the Chapter 26A procedure should aim to secure a fair balance of stakeholder interests by allowing access to justice in a proportionate and transparent manner, without deterring commercial activity in Scotland.
MFMac’s commercial litigation experts have extensive experience advising on and managing group proceedings. Please get in touch if you would like to discuss how these potential reforms may affect your organisation.
This article was written by Josh Chambers, Trainee Solicitor in our Litigation & Dispute Resolution team.
