The SCJC is considering extending the rules surrounding mass legal claims in Scotland to bring forward a US-style ‘opt-out’ approach to class actions, a type of legal process in which two or more individuals can bring a claim on behalf of a larger group of people who have suffered a similar harm.

If extended, the changes could see huge numbers of people being involved in a claim, unless they specifically opt out of doing so. Such a system has many disadvantages - including not delivering for the consumers it is intended to support. 

Seema Kennedy, Fair Civil Justice executive director, said: “Large mass legal cases claim to provide access to justice for consumers, and on the face of it,  sound consumer friendly. But they only work if they deliver the intended results and increasingly the evidence suggests that they are not working. 

“Scotland’s consumers deserve swifter access to justice and consumer redress. But this is not going to be found in our already overburdened courtrooms. We need to have an open conversation about how we can create a better system, one that is based on more efficient complaints and compensation systems, improved regulation of those working in the legal arena and more ombudsman services.” 

Colin Hutton, head of litigation at CMS Scotland, commented: “If implemented, the adoption of an opt-out regime in Scotland would represent the most significant development in Scottish civil litigation in decades. However, the implications reach far beyond the courtroom - the consultation engages a proposal that would have significant economic implications for businesses and the public sector in Scotland, but has largely gone under the radar so far.

“Comparative evidence from Portugal and the Netherlands indicates that Scotland could experience a material spike in mass litigation targeting, in particular, the public sector.  It is notable that, at the point at which Scotland is considering the introduction of an opt-out system, both the Competition Appeal Tribunal and the Netherlands are reviewing the effectiveness of similar regimes. 

“We welcome the Scottish Civil Justice Council consultation but would encourage that, as a minimum, there is proper consideration given to the experience of other jurisdictions, the potential economic impact and the views of the business community and the public sector in Scotland.”