Group actions - what are they?
As yet. Scotland doesn't have any court procedure to enable group actions to proceed. Group actions arise (mainly) in three situations:-
Product liability
Where a number of people will have suffered illness or injury because of a defective product. In this scenario, different people will at different times have suffered because of the defective product. But the right to claim all rises out of the same thing, i.e. the defective product;
Major accidents or disasters (e.g. train crash)
When a large number of people will have been injured; and
Hospital acquired infections (HAI)
Where a number of patients will have suffered illness because of an outbreak of infection.
Procedure
In terms of the Courts Reform (Scotland) Act 2014, a procedure for bringing group actions is to be introducted to Scotland. However, detailed court rules are awaited to tell us how the procedure is going to work. These rules are taking time to be drafted. The latest news is that the rules may come into force sometime in 2020.
How will the procedure work?
In terms of the procedure, a lead or representative action will be heard. The result of the lead action will be then binding on all the other Group claimants. The idea is to avoid precious court resources being taken up by a large number of cases all about the same thing.
Advantages of group actions
Strength in depth
- You will be up against a large manufacturing company, a multinational drugs company or large health authority. They can (and will) throw as much money and resources as they like at defending your claim because they have so much to lose. It's very difficult for one individual to fight a case like this on their own. So, claiming as part of a large group gives you greater strength to pursue your claim. A group will have access to funding options/experts/Counsel that may not be open to an individual.
- You will be able to proceed with your claim in the knowledge that if the lead action fails, you won't be liable for the legal costs of your opponent.
Disadvantages of a group action
- If you choose to participate in the group action, then you lose control over how your own individual claim proceeds. You have to wait on the outcome of the lead action, whether you like it or not;
- In general terms, group actions take much longer to resolve than individual cases, because there is so much more at stake;
- It is possible that the lead action might be settled before the court pronounces a judgement and it is not clear, in this situation, whether the defendant in the case would then be obliged to settle all the other claims.
Which court can you pursue a group action in?
This will only be available in the Court of Session in Edinburgh. It will not be available in your local Sheriff Court.
If you have a group claim, will it be compulsory to join in the group action?
We don't know this for certain yet, but it is anticipated that it may be an "opt in" procedure. This means that individual claimants would still be free to pursue their own individual claims if they want. We will know for certain when the rules come into force. We will update you via our website, as to when the rules come into force.
Examples of group actions in other countries
A number of people have developed asbestos related illnesses relating to exposure to asbestos while using talcum powder manufactured by Johnson & Johnson in the USA. Group actions are already underway in the USA, where the manufacturer is based. A number of claimants from England are already joining in the class actions in the USA. There is no reason why a claimant based in Scotland could also not join in the class action in the USA.
A number if class actions are proceeding in England, relating to defective health products or medical equipment. In particular, claims relating to:-
- Defective breast implants leading to cancer; and
- A defective blood warming machine, leading to a rare blood infection.
What to do if you think you may have a right of claim that might lead to a group action?
Our specialist team of solicitors can advise you on this. If there is already a class or group action proceeding outside Scotland, we can advise you about joining in with this or once the court rules come into force, we can advise you about pursuing such a claim in Scotland itself. You can call us on 0800 988 8082 or complete our online enquiry form.
