Lawyer Monthly - November 2022

Richard McMeeken Richard McMeeken is a partner and solicitor advocate in the commercial litigation team at independent Scottish law firm Morton Fraser. Contact Richard McMeeken Partner and Solicitor Advocate Morton Fraser Lawyers Quartermile Two, 2 Lister Square, Edinburgh EH3 9GL, UK Tel: +44 0131 247 1035 in the action, but they can be of limited value because of the efforts required to find enough claimants to participate in the class. However, opt out actions, which are available throughout Europe, are brought on behalf of a defined group of claimants without the claimants having to proactively choose to participate. If the representative party successfully persuades the court that the action should be brought, then any successful outcome will be shared by all claimants in the class. Accordingly, the value of opt out claims is potentially far more significant. This means that the introduction of opt out actions in due course will significantly benefit Scottish consumers. While they are yet to be introduced, the concept of opt out actions is not entirely alien to Scotland. The Consumer Rights Act 2015 introduced opt out procedure to the Competition Appeal Tribunal (CAT) which has UK-wide jurisdiction in relation to breaches of competition law. Competition law disputes are common in Scotland and the CAT has already had experience dealing with significant opt out claims. Experience in the CAT suggests that the courts may be willing to take a proconsumer approach to opt out claims. In the Mastercard v Merricks case, in which the CAT had to deal with a collective claim for damages resulting from an alleged breach of competition law by Mastercard, the court gave claimants significant comfort. The court decided that in relation to the standard for certification, it would not involve a merits test, and in the approach to damages, a ‘broad brush’ approach could be taken. If that sort of flexible approach is shown by the courts in Scotland in relation to group proceedings, then these claims could be a real boost for Scottish consumers. Businesses will therefore need to take early advice to protect themselves if a claim is on the horizon. Potential claimants and their lawyers will be paying close attention to the likely timescale for introduction of opt out actions, as that introduction may well see a proliferation of claims which we have seen in other jurisdictions. While the Scottish courts are just beginning to implement group proceedings and fine-tune how they will operate in practice, there are positive indicators that the nation could become a destination for class actions, both with opt in proceedings already available and the conditions which make the Netherlands favourable mirroring those in Scotland. However, it is important to note that the opportunities that group proceedings may bring for consumers have to be balanced against the risks and cost for business. The gradual introduction of group proceedings in Scotland, combined with a cautious approach from the court, is likely to mitigate the risk of costly and unmeritorious claims. Regardless, businesses will have to be ready to deal with these claims when they arise. 42 LAWYERMONTHLYNOVEMBER 2022

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