UPDATE: Scotland’s class action ‘opt out’ proposal

In 2020, Scotland introduced an ‘opt in’ class actions mechanism. Last year, the Scottish Civil Justice Council (SCJC) announced that it was considering an extension of that regime to introduce ‘opt-out’ group proceedings in Scotland. This would be a fundamental addition to civil procedure mechanisms in Scotland.  

A call for evidence was opened at the end of 2025 and closed in January this year. The Scottish Civil Justice Council (SCJC) has now published responses, which reveal a clear divergence of opinion.

Notwithstanding this, in the latest developments, the SCJC has now also sent the clearest signal yet that it will be progressing the opt-out proposal, with a further three-month consultation foreshadowed. This is a firm indication of the direction of travel, but may afford another opportunity for interested stakeholders to contribute their views.

Consultation responses

While views expressed to the SCJC in response to its call for evidence differ significantly on whether opt-out proceedings should be introduced, there is broad agreement that any such regime would require robust safeguards, strong judicial oversight and careful regulation of funding arrangements.

The case in favour?

Supporters, including Citizens Advice Scotland, Consumer Scotland, the Class Representatives Network and others, argue that opt-out proceedings would help address a significant access-to-justice gap. Common themes included:

• many individuals do not pursue valid claims because individual losses are too small;
• legal proceedings are often too expensive or complex;
• vulnerable consumers are less likely to participate in opt-in actions;
• systemic wrongdoing can go unremedied if affected individuals do not come forward;
• opt-out proceedings may improve accountability and deterrence. 

Several respondents argued that opt-out mechanisms overcome the problem of low participation rates.  Access-to-justice organisations spoke of wider concerns about legal aid availability, unmet legal need and barriers faced by disadvantaged groups in obtaining legal remedies.

The case against? 

Opponents, including UK Finance, the Scottish Retail Consortium, APIL, GC100 and others, argued that Scotland has not yet demonstrated a need for opt-out proceedings. They point to the commercial and operational risks for businesses and public bodies.

The principal concerns raised were:

• Scotland's opt-in regime is still relatively new and largely untested;
• few Scottish group proceedings have reached final determination;
• opt-out proceedings could encourage speculative or funder-driven litigation;
• litigation costs could increase significantly;
• businesses and public bodies could face greater settlement pressure;
• existing ombudsman, regulatory and redress mechanisms may offer more proportionate solutions.

Respondents pointed to experience of opt-out proceedings in the Competition Appeal Tribunal (CAT) and questioned whether large collective actions necessarily translate into meaningful consumer compensation. Particular attention was paid to low take-up rates in some settlements and the relationship between total settlement values and amounts ultimately reaching consumers.

What next?

The SCJC has now confirmed, in its Strategic Plan 2026–29 and Annual Work Programme for the coming year, that group procedure remains an active area of reform under the wider theme of “Scotland as a Forum of Choice”, noting the desire to leverage the competitive advantages of the Scottish civil justice system.

The SCJC announced that the Working Group is preparing a discussion paper on which there will be a three-month consultation. No timeline is stated, but we anticipate the paper this year. A final report will then be published which will include the SCJC’s decisions on court rules governing opt-out.

The speed of progress is notable when viewed against the wider UK position. This month, the UK Government confirmed that it does not currently propose extending opt-out collective actions beyond competition claims in the CAT, opting instead to consult on reform of the existing regime. Nonetheless, the Law Commission in England & Wales is considering a wider opt-out regime outside of the CAT, with a scoping questionnaire closing in October 2026.

The SCJC’s proposed timetable, together with the fact that the primary legislation underlying the Scottish proposal is already in place, is the clearest indication to date that opt-out proceedings in Scotland will be pushed forward, barring any intervention.

We are keen to hear your views and help you contribute to the debate. Please get in touch.

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