Group Proceedings in Scotland: Our Response to the SCJC Call for Evidence

We’ve submitted our response to the Scottish Civil Justice Council’s Call for Evidence on the potential introduction of opt-out group proceedings in Scotland.

The Scottish Civil Justice Council (SCJC) is consulting on whether Scotland should introduce opt-out group proceedings under Part 4 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. The Call for Evidence considers how such proceedings would operate in practice, including how damages and settlement sums should be treated.

Our response focuses on ensuring that, if opt-out group proceedings are introduced, they are designed in a way that delivers meaningful redress and wider public benefit.

Across Scotland, many people already face significant barriers to accessing legal help. Legal aid deserts and shortages of civil legal aid practitioners mean that large numbers of people struggle to obtain advice on issues such as housing, welfare benefits, immigration, domestic abuse and discrimination. These pressures are particularly acute in rural and remote areas, but they are felt across the country. Across Scotland, 122 communities have no access to a civil legal aid firm at all. 

This wider context is relevant to the design of any opt-out group proceedings regime. Experience from other jurisdictions shows that, even where collective proceedings are available, take-up is often incomplete and a proportion of damages or settlement sums may go unclaimed.

How those unclaimed funds are treated therefore becomes an important policy question. Decisions taken at this stage will determine whether opt-out group proceedings, if introduced, deliver wider public benefit or risk producing unjustified windfalls.

Against this backdrop, our response to the SCJC Call for Evidence focuses on how opt-out group proceedings could be designed to operate fairly and effectively in Scotland.

In particular, we recommend that any future regime should:

• Support for the introduction of opt-out group proceedings in principle, as a mechanism to enable redress where individual claims are unlikely to be pursued.
• Clear provision for the treatment of unclaimed damages, so that where damages or settlement sums go unclaimed they are directed towards improving access to justice, drawing on the Access to Justice Foundation’s role and experience within the UK-wide opt-out collective actions regime.
• Alignment with the UK-wide Competition Appeal Tribunal regime, to ensure consistency, coherence and legal certainty across jurisdictions.
• Clear expectations in relation to settlements, so that settlement frameworks do not default to returning unclaimed funds to defendants or funders, but instead reflect the underlying purpose of collective proceedings.

These issues are central to ensuring that opt-out group proceedings, if introduced, operate fairly and effectively and help strengthen access to justice in Scotland.