The Court of Session has, for the first time, refused permission for an action to proceed as a group proceeding under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. 

Group proceedings are a relatively new procedure in Scotland, introduced by the 2018 Act. Under the procedure a Representative Party can bring claims on behalf of a wider group of claimants where the claims share common issues. 

To commence group proceedings an applicant must first obtain permission from the court to be authorised as the representative party, and must obtain permission to bring group proceedings. 

In Michelle Donnelly v Johnson & Johnson Medical Limited, 17 claimants sought to bring group proceedings against Johnson & Johnson Medical Limited, alleging that five different hernia mesh products produced by the defender were defective in terms of the Consumer Protection Act 1987. The defender opposed both applications for permission.  

The court considered whether the applicant had met the requirements for permission to bring group proceedings. Under the 2018 Act an applicant must demonstrate that: 

1. The claims made in the proceedings raise issues (whether in fact or law) which are the same as, or similar or related to each other; 
2. The claimants have a prima facie case;
3. It is more efficient for the claims to be brought as group proceedings rather than separate individual proceedings and;
4. The proceedings have real prospects of success. 

The court accepted that there were common factual issues in the claims, and considered that the applicant had demonstrated that the claimants had prima facie claims with real prospects of success. 

However, the court considered that the applicant had failed to show that group proceedings were likely to be more efficient than a series of individual actions. The court held that where the number of claims is small the relative advantage of the group procedure rules over individual processes is reduced. It considered that each claim would need a more individualised articulation in order to establish liability and respond to the prescription and limitation pleas taken by the defender. It concluded it was more practical to manage the claims as individual ordinary actions. 

This is the first time a defender has been successful in opposing an application for permission to bring group proceedings. In previous attempts, such as in the NOx emissions claims, the court has found a sufficient degree of commonality and procedural readiness to justify group proceedings. That is perhaps unsurprising given those claims were brought by many thousands of claimants, the alternative of individual claims would be unmanageable. However where, as here, the number of claims is much more limited, and on the face of those claims it is clear that each claimant requires to establish factual and legal issues specific to each individual, group proceedings are unlikely to be appropriate. 

Had it been prepared to permit group proceedings, the court advised that it would have required a more particularised formulation of the group issues. The group issue proposed by the applicant was “Claims arising in Scotland from the use of certain hernia mesh products manufactured by the defenders”. The court considered that such a general description of the issue did not allow a judge to be able to identify the scope of the proceedings or determine what case management orders were appropriate. The issues should be defined with as much detail as possible. 

The refusal of group proceedings in Donnelly affirms the court’s gatekeeping role in assessing applications for group proceedings. Despite the presence of multiple claimants and shared factual issues, the court concluded that group proceedings  would not offer a more effective means of managing the litigation. This decision underscores the importance of applicants demonstrating tangible gains in efficiency and case management when seeking permission to proceed as a group. While in many respects the court has indicated a preparedness to take a benevolent approach to applications at this preliminary stage, this decision confirms that claimants still require to justify their use of this procedure.