Scottish court makes ‘pragmatic decision’ on application of group proceedings rules

Steven Blane, litigation expert at Pinsent Masons, said the Inner House of the Court of Session’s decision to refuse a reclaiming motion against the ruling of a lower court on group proceedings was “pragmatic”, adding that the ruling was noteworthy since “there have so far only been a handful of written decisions” on the new procedure in Scotland.

The court heard how around 1,500 former and existing employees of the Scottish tea producers James Finlay (Kenya) Ltd had been granted permission in the Outer House of the Court of Session to bring group proceedings against the company, seeking damages in respect of various musculoskeletal injuries in the area of the lumbar and cervical spine which they say were sustained while harvesting tea on the firm’s plantations in Kenya.

Lawyers for James Finlay Ltd argued that Outer House had mistakenly granted permission for the group proceedings because the claims of the employees are not “the same as, or similar or related to, each other”. They said that, while the 2018 Civil Litigation (Expenses and Group Proceedings) (Scotland) Act allowed groups of people to raise group actions, it did not permit groups with disparate claims to bring a group action simply because they were employed by the same person.

Handing down the decision of the Inner House (4 pages / 411KB PDF), however, the Lord President, Lord Carloway, said the court “had no difficulty” in finding that the Outer House’s ruling was correct. He said the employees’ injuries arose from “common working practices” and amounted to “a prima facie case based upon the respondents having failed in their duty of care. They were sufficiently similar to justify the grant of permission.” Lord Carloway also agreed with the Outer House that it would “produce a more efficient administration of justice for the claims to be brought in group, rather than individual, proceedings.”

Blane said: “While this decision on the application of new group proceedings rules is short, and does not have any detailed consideration of the statutory provisions relied upon, it is still noteworthy. It is still very much ‘early days’ for the new procedure in Scotland, and the courts are still finding their way. There have so far only been a handful of written decisions, so each one will play an important role in the way the new rules come to be applied.”

He added: “Ultimately, this ruling looks like a pragmatic decision to allow matters to proceed to trial - but it might be storing up further questions in the future. Some might say that this was a lost opportunity for the Inner House to weigh in on the issues and give some advice on process, but that might be unfair. Their Lordships may well think that it will be more appropriate to provide detailed guidance on these issues in any future reclaiming motion after the case has been to trial.”