Group litigation set to occupy Scottish courts during 2022

An action raised on behalf of hundreds of tea farmers in Kenya is suitable to be heard under the new group procedure in Scotland, a recent judgment has held, setting the scene for this type of hearing to become more commonplace in Scottish courts.

An action was raised last year against James Finlay (Kenya) Ltd, alleging poor working conditions in its tea plantation resulting in workers developing musculoskeletal injuries. They claim workers have been subjected to 12 hour days, carrying baskets weighing around 12 kilograms, resulting in painkillers being administered onsite by the company. The workers also reported low pay, or alternatively, no pay at all if they did not pick enough crop.

This case has come in front of the Scottish courts because James Finlay (Kenya) Ltd is registered in Scotland. It is argued that the claims would never materialise in Kenya, with the lack of legal aid or any form of group procedure to allow for a sharing of costs.

Identity of “representative party”

Two hearings thus far have focused on the identity of the “representative party” or claimant in whose name the action will run. In a novel application, the law firm acting for the workers, Thompsons Solicitors, itself sought to be appointed as the representative party. They argued they are a “suitable person” on the basis of efficiency, experience and resource in personal injury litigation, and to avoid selecting an individual at random simply as the face of the litigation.

However, the judge refused to allow Thompsons to act in this capacity, citing potential conflicts of interest, the potential appearance of impropriety (though, noting no impropriety on Thompsons themselves) and the financial influence of a law firm acting in group proceedings. No precedent in any other jurisdiction was given to him for the appointment of a law firm to act in this capacity.

The court has now approved a retired senior counsel as the representative party.

The group has been given permission to proceed, on the basis of similarity of the claims, clarity in deciphering group members, and efficiency.

These claims have been closely followed by the commencement of group proceedings in relation to historic child abuse at Celtic boys club, in which the court has just this week approved another retired senior counsel to be appointed as representative party.

The application to proceed as a group claim was opposed by Celtic on the basis that the legal issue of Celtic’s liability for the alleged sexual abuse will be very fact specific to each individual claim. Consequently it was argued that it was no more efficient to proceed as a group. This could also give rise to fair trial concerns. However, the court was satisfied that the individual claims are sufficiently similar or related as to be suitable for the new group procedure.

So what?

The uptick in the adoption of the new group procedure underlines the potential for any business, particularly those that are consumer facing, to face a group claim. Sectors that may be particularly vulnerable could include: pharmaceuticals, medical devices, financial services, automotive, consumer products, travel and tourism, energy, telecommunications, environment and health, and any business dealing with personal data.

Group claims could be brought against businesses with operations in Scotland but also potentially any companies selling services or products into Scotland.

Just one example coming down the tracks: a further group action is also anticipated in relation to a data breach claim against Easyjet, and more seem likely to follow.

For those with an eye to the detail, given the novelty of the group procedure rules in Scotland, further decisions in these cases and others proceeding under the new group procedure will be of significant interest.

We have leading expertise in the new group procedure in Scotland. Please get in touch if you would like to discuss any of the points above.

This blog was co-authored by Amy McSkimming.

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