We use cookies to make your experience of our website better. Some of these are set by third party Google Analytics to help us analyse website traffic. To comply with privacy regulations, we require your consent to set these cookies. If you continue to use the site without selecting an option we will assume you are happy for us to use cookies.

What's Next For Product Liability Actions?

What's Next For Product Liability Actions?

Fiona McAllister

A transformation of the Scottish civil justice system is expected this year as the Courts Reform (Scotland) Act 2014 comes into force. The first provisions came into effect on 1 April 2015 and the next tranche will be effective from September 2015. Here we take a look at a couple of ways in which this new legislation will impact on how product liability actions are taken forward in Scotland.

One of the landmark changes introduced by the 2014 Act is the vast increase in the privative jurisdiction of the Sheriff Courts (lower courts). Under the current legislative framework, any action up to the value of £5,000 must be raised in the Sheriff Court. The new legislation increases this upper limit to £100,000. Accordingly, only actions above this amount (subject to certain exceptions) can be raised in the Court of Session (higher court). This contrasts with the £50,000 value above which cases in England and Wales are usually dealt with by the High Court.

Needless to say, this will lead to increased consolidation from a pursuer’s (claimant’s) perspective. It is expected that around 47% of civil cases will transfer from the Court of Session to the Sheriff Courts. Sheriff Court actions are generally less burdensome in terms of legal costs and court fees and pursuers will have to raise their case in the Sheriff Court if the value of their case is less than £100,000.  However, it may be that pursuers inflate their cases in order for them to be heard in the Court of Session. The benefits of doing so would include the possibility of instructing Counsel and increased flexibility. Indeed, up until now, product liability cases have, by and large, been dealt with in the Court of Session due to their complexity and the special protocols which the Court of Session has developed to manage such cases. For the same reasons, product liability cases are often initially raised as personal injury actions and thereafter transferred within the court, to be dealt with as ordinary actions.

On a related note, under the new legislation, it is envisaged that Scotland will follow the approach taken in England and Wales to ensure particular cases are govern by specialist courts and by Sheriffs with specialist knowledge and expertise. It is anticipated this will include a personal injury court, based in Edinburgh. Specialist courts do already exist in Scotland – commercial action procedure has been available in several sheriff courts for up to 15 years. It is hoped that the creation of more specialist courts will improve the efficiency of how cases are dealt with in Scotland.

At present, “class actions”, or “group actions”, do not exist in Scotland nor have they been introduced by the 2014 Act despite being considered in the past. Where there are a number of cases with common issues, as is frequently the case in product liability actions, the Court of Session has been willing to adopt a bespoke case management protocol to deal with these cases to ensure that they are handled efficiently. That can include the identification of test cases. The Scottish Government now has a public consultation currently underway that seeks input on class action proposals. The three options being considered are

  1. a case management "opt-in" system similar to the English GLO procedure;
  2. a full class action procedure, where an applicant could bring a case on behalf of members of a group where those individuals had not yet initiated proceedings;
  3. a full class action procedure as under option 2 but with the added element of allowing third party bodies to bring cases.

If and when class/group actions are introduced in Scotland, it is likely these would be limited to the Court of Session only.

Of course, the true impact of this new legislation remains to be seen. In any event, it does mark the beginning of a changing landscape for Scotland’s civil courts system. Unsurprisingly, all of these changes have an impact on how litigation is funded and a consultation on this topic is already underway. We will keep you posted on the outcome of the consultation, the Act’s wider impact and subsequent developments.

Fiona McAllister
Associate

LChalmers