Scott Campbell

New polling commissioned by English law firm Hausfeld & Co LLP demonstrates wide support for opt-out collective legal claims, with two-thirds of respondents backing their introduction in Scotland.

Opt-out claims are group legal claims in which eligible claimants are automatically included in the claim, unless they actively remove themselves. They are distinct from opt-in claims, where individual claimants must actively sign up to the claim themselves and instruct lawyers/arrange cost funding, which present a much higher bar for entry for the average consumer.

A nationally representative sample of 1,130 Scots showed that over two-thirds of respondents would prefer to seek compensation through an opt-out, over an opt-in, claim and nearly two-thirds thought Scotland should allow opt-out claims. Respondents also strongly agreed that legal claims help ensure companies follow the rules and provide a more direct, and, in the case of opt-out claims, fairer route to compensation.

The polling comes as Scotland assesses the introduction of opt-out claims, with the Scottish Civil Justice Council (SCJC) set to publish proposals in the coming weeks. Opt-out claims currently exist in the UK but are limited to breaches of competition law in the Competition Appeal Tribunal.

The SCJC proposals, however, could see opt-out claims introduced across all areas of the law in Scotland, allowing for claims to be brought on behalf of Scottish consumers for a much wider variety of alleged harms such as defective products, consumer protection and data privacy claims.

The polling shows:

• When explained the difference, nearly three quarters (71 per cent) of the Scottish public would prefer to receive compensation automatically through an opt-out collective legal claim, rather than an opt-in claim.
• If included automatically in an opt-out claim, nearly three quarters (72 per cent) of respondents said they would remain part of the claim, compared to only three per cent who said they would not.
• With the difference explained, nearly two-thirds (65 per cent) think Scotland should allow the introduction of opt-out claims, with only eight per cent opposed.
• However, over a third (38 per cent) had not heard of collective legal claims and only a third (34 per cent) said they understood well how such claims work, suggesting any introduction of opt-out claims in Scotland would need to be properly communicated to the public.

Scott Campbell, head of competition disputes and partner at Hausfeld, said: “The Scottish public has made it clear that it wants greater and fairer access to collective redress, improved corporate compliance, and recognises that an opt-out collective actions regime can help deliver both.

“For the Scottish Civil Justice Council, this is a strong endorsement of their intention to introduce opt-out claims, and of the need for an opt-out regime catering to all types of consumer harm, from environmental claims to data breaches.”