Have your say on plans to rethink ‘class actions’

So, what’s the change? Let’s assume you are an individual who bought a product or service which caused you injury or damage. You find out that others have had a similar experience. You are aggrieved and want compensation. Currently, individuals must actively ‘opt in’ to a group claim for compensation, and law firms require to take time advertising to potentially affected individuals who consent to their inclusion in any claim.

The proposed shift to a US-style ‘opt-out’ regime would flip the process: instead of consenting to a claim being brought, court proceedings could be brought on behalf of large classes of consumers without their knowledge, and individuals would have to ‘opt out’ if they didn’t want to be involved. Why? It may be expensive and time-consuming to identify individuals who may have a claim, particularly if the number affected is very large; this process would save time and money, at least initially. It’s also possible that you don’t know you have a claim.

Advocates for the ‘opt out’ process point to access to justice: particularly for smaller claims where it may not be economical to sue individually, collecting claims together is seen as financially more viable to seek compensation; efficiencies of scale; and the finality that it achieves (since everyone possibly affected is included, any decision or settlement achieves a conclusion all round).

Critics point to the lack of autonomy it involves, the blanket approach to all claims without considering individual circumstances; the lack of uptake even when there is a positive financial conclusion; the amount of money generated for law firms and litigation funders in the process; and perhaps most of all, the increased risk and exposure for defenders.

This development could pave the way for vast claims with significant sums sued for. This would be a game-changer in terms of litigation risk in Scotland. Given the potential for data privacy, product liability, consumer protection or climate-related claims, amongst others, there is significant potential exposure for businesses, regardless of sector.

A number of other collective action mechanisms are available across the UK. The possibility of simultaneous or overlapping claims in multiple jurisdictions alongside these new developments in Scotland only increases the strategic and legal complexity for UK-wide and global businesses operating in or selling into Scotland.

Topics covered by the consultation are significant, including: the types of claim to which this should apply; funding; requirements for settlement; and costs, in addition to procedural matters.

Stepping back, is court the right route to resolve consumer disputes? If the aim is an accessible path to redress for consumers, and a level playing field for businesses, might it be more proportionate and efficient to create a separate civil redress process for certain smaller claims, outside of the court system? With court processes stretched and sometimes slow, a more innovative approach might have achieved a better end.

With many questions to be answered, the Call for Evidence is open for responses until 23 January 2026.

Joanna Fulton is a Partner, Burness Paull. This article was co-written by Pauline McCulloch, director, Burness Paull