Consultation launched over opt-out class action rules for Scotland

The SCJC has opened a consultation into how to develop court procedure for group proceedings going forward, with a particular emphasis on opt-out proceedings, after confirming it had made group proceedings a priority for its next year of work.

Scotland currently operates an opt-in model for class action cases. However, the Civil Litigation (Expenses and Group Proceedings) Scotland Act 2018, which provided the legislative authority for group proceedings to be introduced in the Court of Session, authorises group procedure on an opt-out, as well as opt-in, basis.

Rules allowing for group proceedings on an opt-in basis came into force in 2020, and now with several years’ experience of the procedure, the SCJC says it is ready to consider what opt-out proceedings would mean for the Scottish system.

"The SCJC deferred consideration of the introduction of opt-out procedure until sufficient experience had been gained from progressing opt-in actions,” the Council said in its invitation to contributors.

"The SCJC has now prioritised this subject matter in its work programme for 2025/26 and established a working group to make progress.”

The move comes after the UK government launched a review in August of the opt-out rules for class action around antitrust cases in the Competition Appeal Tribunal, a decade after the legislation was first introduced.

That review was launched in the wake of concerns that the current regime has seen just one case reach trial despite a resultant growth in caseloads and fees. The changes could open the door to an increase in class actions in the future, with claimants looking to take advantage of a wider route to opt-out proceedings not currently available elsewhere in the UK.

The SCJC said it would also hold a public consultation on any recommended changes in the wake of the current call for evidence, which runs until 23 January 2026.

Jacqueline Harris, a commercial litigation expert with Pinsent Masons in Edinburgh, said the outcome of the consultation could have a significant effect on class action procedure in the UK.

If opt-out proceedings are implemented in Scotland following this call for evidence and any consultation period, then Scotland could become the first jurisdiction in the UK to have a general court procedure for large groups of civil claims on an opt-out basis,” she said.

"Currently, the only forum for opt-out proceedings in the UK is for competition law matters before the Competition Appeal Tribunal. It remains to be seen what the impact of the SCJC’s focus on opt-out proceedings could mean for potential future claimants and organisations with business interests in Scotland.

"As there is already a legislative basis for opt-out proceedings, and no further primary legislation is required in order to introduce new opt-out court rules, there is a reasonable prospect that this new form of procedure will be implemented in Scotland. However, we expect any consultation period and the finalising of any new court rules to take some time, so any change will not be imminent. There is also, as yet, no detail on how a new opt-out regime would operate in practice.“