Scotland update – group claims consultation on opt-out regime – urgent deadline to respond

As we highlighted in our previous blog, the Scottish Civil Justice Council is currently consulting on the possible introduction of an ‘opt-out’ regime for civil claims in Scotland. 

This proposal has not been widely publicised but the call for evidence remains open until 23 January 2026. As such, there remains time to respond to this very important consultation.

Why?

An ‘opt-out’ regime would dramatically change the risk landscape for litigation in Scotland, with the possibility of a greatly increased number of claimants and, in turn, much larger sums being sued for. An opt-out regime means claims can be brought on behalf of a nominal class of affected persons, but without them knowing or actively consenting to be part of the claim. It would require individuals actively to withdraw from the group if they did not wish to be included.  

This change would also have a significant effect on the UK litigation picture more widely, and potentially further afield. Currently, 'opt-out' proceedings in the UK are only available for competition claims, so Scotland could be a game changer. 

What are the risks?

There are a number of sectors at heightened risk of a group claim, particularly under an opt-out regime, such as energy, financial services, consumer products, retail, technology, and organisations holding significant amounts of personal data.  

One area of potential litigation risk under an opt-out regime for many of these is climate-related litigation. Whether it’s an activist organisation or stakeholder group challenging a failure to meet climate commitments, including so-called ‘greenwashing’ claims, or communities that have been exposed to incidents relating to climate change, an ‘opt-out’ group action regime will make it easier to bring large-scale claims in Scotland. 

Government and organisation climate change policies and targets become a clear hook for litigation, whether by activists, consumers or shareholders. According to a recent LSE study, the signing of the Paris Agreement in 2015 led to a significant increase in the number of climate change cases being filed globally each year: there are presently nearly 3,000 such cases on foot around the globe.  

When the UK government introduced the Climate Change Act 2008, it became the first country in the world with legally binding carbon reduction targets, and it has recently published its carbon budget and growth delivery plan. Scotland’s Climate Change Act 2009 closely followed suit and stands as one of the most ambitious legislative frameworks for emissions reduction in the world; in its draft climate change plan 2026-2040, the country’s principal objective is net zero emissions of all greenhouse gases by 2045. We can reasonably predict these commitments will continue to fuel the increase of climate claims in the UK.  An opt-out regime would undoubtedly help to foster these.  

We are also seeing climate-related claims based on breaches of human rights, such as the high profile Verin KlimaSeniorinnen Schweiz & Ors v Switzerland, the first ever climate claim argued in front of the European Court of Human Rights.  Whilst currently these sorts of human rights-based climate claims are typically brought against states or public authorities, it is likely that similar concepts will ultimately be imported into climate claims against companies, including by large groups of affected individuals. In a similar vein, we may also see private litigants relying on “soft law” international voluntary codes and guidelines to which companies have signed up.  

Climate-washing

“Green-washing” or “climate-washing” means misleading third parties by overstating the positive climate impact of a product, service, process, brand or business. This could lead to claims from consumers, including mass claims e.g. for false representations.  The rate of success for climate-washing claims remains consistently high, with the Grantham Research Institute reporting in its 2025 annual report on global trends in climate change litigation that more than 60% were successful. 

We see this type of action rapidly increasing in other jurisdictions across the world: class-actions for climate-washing statements in the US include a challenge to Evian for branding its bottled water as “carbon neutral”; H&M for its use of “conscious choice” branding when marketing clothing made with 50% or more “sustainable materials”; and Colgate for falsely advertising toothpaste tubes as recyclable.

An opt-out regime in Scotland is likely to bring more of these.

UK position

In England, claimants are bringing novel claims to hold companies to account if their activities have an adverse impact on the environment or human rights. Historically, these have been based on environmental damage arising from mining operations and oil pipelines. We are now starting to see allegations of harms arising from climate change said to have been caused or contributed to by a company. For instance, in England, a group of individuals have raised proceedings against Shell, seeking to hold it liable for its alleged impact on extreme weather events in the Philippines. 

We have also seen NGOs challenging decisions made by the UK government that adversely impact the climate. The 2024 UK Supreme Court’s Finch decision marked a major shift in environmental and planning law, ruling that emissions from the eventual combustion of extracted oil count as environmental “effects of” a development. In 2025, climate litigation in Scotland kick-started with UK-based environmental campaign organisations Uplift and Greenpeace UK successfully challenging approval of the Rosebank and Jackdaw oil and gas fields in the North Sea on similar grounds. In contrast, in November 2025, the High Court ruled in favour of the UK government in marine conservation group, Oceana UK’s, action against the grant of exploration licences in the North and Irish Seas. 

These decisions have become touchpoints for climate litigation in the UK. Given the significant publicity they generate, they serve to increase awareness of climate-related issues and the potential to take action through the courts, which is likely to fuel future climate litigation. 

Key takeaway

For campaigners, stakeholders and affected individuals exploring group-based climate actions, current activity in the UK courts and abroad acts as powerful ammunition and highlights that the courts are willing to interrogate the climate implications of government choices and corporate action. The introduction of an opt-out regime in Scotland would herald more climate-related cases in Scotland, against both Scottish companies, and against foreign companies with Scottish interests or activity.

Please get in contact with our class action team to share your views and seek support.

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