Setting the scene

In July 2025, it will be five years since Part 4 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 came into force – the Act which introduced the ability to bring group proceedings (known in other jurisdictions as class actions) in Scotland.

In those five years, fewer than 10 actions have been given permission to be brought as group proceedings and the procedure is still very much in its early years.

This is why the recent decision of the Inner House of the Court of Session in the Nissan/Renault NOx group proceedings – Joseph Mackay v. Nissan Motor Co Ltd & Others [2025] CSIH 14 – is a welcome development. In this decision, the Inner House has issued guidance, for the first time, on the two applications that must be made to initiate any group action in Scotland. 

Issues in dispute

In order to initiate group proceedings in Scotland, two preliminary applications are required to be made to the court: an application to appoint a representative party and an application for permission to bring the proposed group proceedings.

Mr Mackay applied for permission to bring group proceedings concerning the alleged fitting to Nissan and Renault diesel vehicles of devices for the control of nitrogen oxide emissions during regulatory testing. He also applied to be authorised as the representative party on behalf of approximately 8,500 persons claiming to have suffered a loss as a result of that alleged behaviour.

Permission for both applications was granted but subsequently appealed. Those appeals were refused by the Inner House in this decision.

Appointment of a representative party

The rules on appointment of a representative party of the group provide that the judge hearing the application must be satisfied that they are a suitable person. That is the sole criterion of the appointment.

In taking that decision, the rules provide a list of matters which the judge must consider. That list includes the special abilities and relevant expertise of the applicant; the applicant's own interest in the proceedings; whether the applicant is independent; and whether the applicant would act fairly and adequately in the interests of the group members as a whole.

In dismissing the appeal, the court made clear that the applicant does not require to tick off each and every one of these requirements. That, the court said, would involve an unrealistically prescriptive and inflexible approach. Whether or not an applicant is suitable must be assessed in a holistic fashion, in the round, taking account of all the relevant features of the particular case.

The court noted that Mr Mackay is an ordinary and willing member of the group of claimants. Standing behind him, he has the benefit of an experienced team of solicitors. The legal team also includes independent members of the Faculty of Advocates. If Mr Mackay were not considered a suitable person, it was difficult to see how anyone could be found who would be willing to take on the role of representative party. If the bar were to be set at too high a level, such as by an insistence on the possession of particular expertise or technical qualifications, the result would be to undermine access to justice.

Permission to bring group proceedings

Group proceedings may only be brought with the permission of the court.  

The rules provide that the court may refuse permission where: (i) the claims made in the proceedings do not raise issues (whether of fact or law) which are the same, or similar or related to each other; (ii) it has not been demonstrated that there is, on the face of the materials, a case to be argued (i.e. a prima facie case); (c) it has not been demonstrated that it is a more efficient administration of justice for the claims to be brought as group proceedings; or (d) it has not been demonstrated that the proposed proceedings have any real prospects of success.

As regards the first limb, the court found that the statutory test does not require the issues for resolution in group proceedings to be identical in the case of every group member – they merely have to be similar or related to each other. In this context, there was ample material before the Lord Ordinary to entitle him to hold that there was sufficient communality amongst the members of the proposed group to allow the factual and legal issues to be regarded as at least related to each other.  

In relation to the need to establish a prima facie case, the court held that this required no more than the appearance of a serious question to be tried, or that there is a case to argue and a case to answer. The court noted that this is a low test.

The test of there being real prospects of success is similarly not an exacting one. The prospects simply have to be genuine as opposed to being speculative or fanciful.

Finally, the court concluded that there could be no doubt that it would be more efficient for the administration of justice for the large number of claims to be brought as group proceedings rather than having to be pursued individually. The court agreed with the Lord Ordinary's observations that it would border on the unthinkable to force each of the 8,500 claimants to bring a separate action.

Key themes

The thread which runs through the decision is the court's desire to ensure access to justice and to ensure that Scotland has an effective procedure which affords multi-litigants the opportunity to bring an action at a lower cost than many individual cases, as well as delivering a more streamlined and effective procedure, thus reducing the demands on and thereby opening up access to the Scottish courts.

The other key message is that the applications required to commence group proceedings are preliminary applications and should be treated as such. They should be dealt with expeditiously, without delay and should not be allowed to become unduly drawn out by the exploration of detailed questions of fact or law – these are matters to be addressed in substantive procedure, once the proceedings have commenced.

Finally, the court was keen to stress that its rules which implemented the Act are "intended to allow for flexibility and discretion". The judge allocated to and presiding over any group action will have wide powers to tailor the procedure in response to the circumstances and complexity of individual cases.

Conclusion

Any business facing the threat of a group action would be well advised to seek legal advice as early as possible to ensure that an appropriate strategy is in place for responding quickly and effectively to the initial stages of the Scottish procedure. The message from the courts is clear. Matters are expected to move swiftly and those that are not ready to respond risk being left behind and losing the opportunity to make appropriate challenges. Although the bar for success in the preliminary applications is not a high one, there are still statutory tests that need to be met, before group proceedings can be commenced.

Please do contact a member of Dentons' Scottish Group Proceedings team if further assistance is required.