Lawyer Monthly - November 2022

Class actions are gathering pace in international markets – will Scotland follow suit? While Apple was recently sued by consumer groups claiming the business planned obsolescence in its technology, Meta is in the sights of claimants because of the Cambridge Analytica scandal – and an action against TikTok alleges the company sent children’s data to China without permission or parental consent, breaking GDPR laws. Class actions are gathering pace in Europe, with big tech companies most prominently set in claimants’ sights. The Netherlands, which is home of the current TikTok action, has become a hub for class actions in recent years. It is understood that around 50 class actions have now been instigated in the Dutch courts. Why might this be the case? First, there is a relatively low cost of instigating claims in the Netherlands. Secondly, there is a low adverse costs risk. Thirdly, litigation funding is prevalent. Finally, the Dutch court system tends to be quite fast, as compared to the court system of some of its European neighbours. These features are all common to litigation in Scotland, too. To raise a court action in the Scottish courts there is a modest court fee, especially when compared to anywhere else in the UK. And while the risk of adverse costs can be significant for an unsuccessful party, there are a couple of measures now available which potentially mitigate that risk to a significant extent. For example, protective expenses orders may be available to a claimant in some cases. And in class actions arising out of clinical negligence issues, qualified one-way cost shifting may apply. Further, where claimants are willing and able to pay the premium involved, the availability of After the Event (ATE) insurance cover may mitigate the risk of an adverse costs award entirely. All of this is supplemented by the increased availability of litigation funding. Will Scotland Become a Hub for Class Actions? Tom Keya Founder, Soulh 71-75, Shelton Street, Covent Garden, London, United Kingdom, WC2H 9JQ Special Feature With class actions being launched against tech giants and other large firms across Europe, th stage may be set for Scotland to become a favoured destination for these lawsuits. Why is this, and what might be the impact on the country? Morton Fraser partner Richard McMeeken offers his thoughts. 40 LAWYERMONTHLYNOVEMBER 2022

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