Class action lawsuits modeled after the US system are gaining traction in Europe, particularly in Scotland, where their influence is becoming increasingly pronounced.

In Scotland, the introduction of class actions, referred to as group proceedings, occurred four years ago. Since that time, numerous cases utilizing this new procedure have been brought before the Scottish courts.

Although Scotland is part of the United Kingdom, it has its own separate legal system and its own courts. Certain specialist courts in the UK enjoy a UK-wide jurisdiction. These include the Competition Appeal Tribunal (CAT) which has an opt-out collective action mechanism for claims based on antitrust law.

The Scottish courts adopt a relatively low threshold for certification. To date, no application has been denied at the initial stage in Scotland.

This claimant-oriented approach is also reflected in the court’s handling of issues related to costs and funding. In determining whether to grant certification for a class action, the court assesses whether the representative party possesses sufficient financial resources to cover the opposing party’s costs in the event of an unsuccessful outcome. Thus far, the Scottish courts have required minimal information from representative parties to address this concern satisfactorily.

The Scottish courts are committed to establishing their own unique framework for class actions. In a recent ruling by Lord Ericht, which permitted customers of a German automobile manufacturer to initiate class action proceedings, he remarked that the English class action procedure does not serve as an appropriate reference for how the court will handle group proceedings in Scotland.

Currently, class actions in Scotland operate solely on an opt-in basis; however, recent legislation passed by the Scottish Parliament will allow for the introduction of an opt-out procedure. Under this opt-out model, all potential claimants will be automatically included in the class action unless they explicitly decide to opt-out.

Notably, a Scottish opt-out framework is likely to enable claims for a variety of causes of action, similar to WAMCA proceedings in the Netherlands, rather than being limited to competition class actions as is presently the case in the UK.