Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020
| Jurisdiction | Scotland |
| Citation | SSI 2020/208 |
2020 No. 208
Court Of Session
Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020
Made 8th July 2020
Laid before the Scottish Parliament 9th July 2020
Coming into force 31th July 2020
In accordance with section 4 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 20131, the Court of Session has approved draft rules submitted to it by the Scottish Civil Justice Council.
The Court of Session therefore makes this Act of Sederunt under the powers conferred by section 103(1) of the Courts Reform (Scotland) Act 20142, section 21(1) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 20183and all other powers enabling it to do so.
Citation and commencement, etc.
1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Group Proceedings) 2020.
(2) It comes into force on 31st July 2020.
(3) A certified copy is to be inserted in the Books of Sederunt.
Amendment of the Rules of the Court of Session 1994
2.—(1) The Rules of the Court of Session 19944are amended in accordance with this paragraph.
(2) In rule 4.2(3) (signature of documents)5, after sub-paragraph (b) insert—
“(bza)
“(bza) an application in Form 26A.5 or Form 26A.8 may be signed by the applicant or an agent;”.
(3) In rule 5.1 (orders against which caveats may be lodged)6—
(a)
(a) in sub-paragraph (d), after “in which he has an interest;” omit “and”;
(b)
(b) in sub-paragraph (e), after “a petition for his sequestration” insert “; and”; and
(c)
(c) after sub-paragraph (e) insert—
“(f)
“(f) an order permitting the bringing of group proceedings (within the meaning given in Chapter 26A)”.
(4) In rule 13.2 (form of summonses)7, after paragraph (1) insert—
“1A. A summons in an action to which Chapter 26A (group procedure) applies is to be in Form 13.2-AA.”.
(5) After Chapter 26 (third party procedure)8, insert—
“CHAPTER 26A
GROUP PROCEDURE
PART 1
GENERAL PROVISIONS
Interpretation and application of this Chapter
(1) In this Chapter—
“the Act” means the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 20189;
“group” has the meaning provided in section 20(2) of the Act;
“group member” means a person who, along with one or more other persons, expressly consents to the group proceedings to be brought on his or her behalf;
“group proceedings” has the meaning provided in section 20(1) of the Act;
“group register” is a record, in Form 26A.15, of those persons who are group members;
“representative party” has the meaning provided in section 20(2) of the Act.
(2) In rules 26A.6, 26A.7, 26A.9, 26A.11 and 26A.15 “applicant” has the meaning given in rule 26A.5(1).
(3) This Chapter applies to group proceedings as provided for by Part 4 of the Act.
Disapplication of certain rules
(1) The requirement in rule 4.1(4) (form, size, etc., of documents forming the process) for a step in process to be folded lengthwise does not apply in proceedings to which this Chapter applies.
(2) An open record is not to be made up in, and Chapter 22 (making up and closing records)10does not apply to, proceedings to which this Chapter applies unless otherwise ordered by the Lord Ordinary.
(3) The following rules do not apply to proceedings to which this Chapter applies—
(a) rule 6.2 (fixing and allocation of diets in Outer House)11;
(b) rule 36.3 (lodging productions).
Procedure in group proceedings
(1) Subject to the other provisions of this Chapter, the procedure in proceedings to which this Chapter applies is to be such as the Lord Ordinary is to order or direct.
(2) All proceedings in the Outer House to which this Chapter applies are to be heard or determined on such dates and at such times as are fixed by the Lord Ordinary.
(3) The fixing of a hearing for a specified date and time in proceedings to which this Chapter applies does not affect the right of any party to apply by motion at any time under these rules.
Motions under this Chapter
(1) Chapter 23 (motions)12applies to motions under this Chapter.
(2) Motions under this Chapter may be intimated and enrolled in accordance with Part 2 of Chapter 23.
PART 2
REPRESENTATIVE PARTY
Application to be a representative party
(1) An application by a person (the “applicant”) under section 20(3)(b) of the Act to be a representative party to bring group proceedings is to be made by motion, in Form 26A.5.
(2) On a motion being enrolled under paragraph (1), the application is to be brought before a Lord Ordinary on the first available day after being made, for an order for—
(a) intimation and service of the application on the defender and such other person as the Lord Ordinary thinks fit within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;
(b) such advertisement as the Lord Ordinary thinks fit to take place within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;
(c) any person on whom the application has been served, to lodge answers and any relevant documents, if so advised, within 21 days after the date of service, or within such other period as the Lord Ordinary thinks fit.
(3) A person served with the application who intends to participate in the decision as to whether authorisation should be given must lodge answers within the period ordered for the lodging of answers.
(4) Where answers are lodged under paragraph (2)(c) a hearing must be fixed.
(5) The applicant and any person who has lodged answers must be given at least 7 days’ notice of a hearing ordered under paragraph (4).
(6) Where application for permission to bring proceedings is being made under rule 26A.9(1) at the same time as an application is made under paragraph (1) then paragraphs (7) and (8) apply.
(7) The applicant must, at the same time as making the applications under this rule and rule 26A.9(1), lodge in the General Department—
(a) the summons by which it is proposed to institute proceedings;
(b) a group register in Form 26A.15; and
(c) all relevant documents in the applicant’s possession which are necessary for the court to determine whether or not to give permission.
(8) The applicant must, at the same time as lodging papers in the General Department under paragraph (7), serve those papers on the defender.
(9) Evidence of service in accordance with Chapter 16 must be provided to the General Department within 14 days from the date of service.
Application by more than one person to be a representative party
(1) This rule applies where—
(a) more than one application made under rule 26A.5(1) is received by the court from more than one applicant in connection with the same issues (whether of fact or law) which may be subject to group proceedings; and
(b) the Lord Ordinary has not determined the first received application at the point a subsequent application is received.
(2) A hearing on the applications must be fixed by the court.
(3) The applicants must be given at least 7 days’ notice of a hearing fixed under paragraph (2).
Determination of an application by a person to be a representative party
(1) An applicant may be authorised under section 20(3)(b) of the Act to be a representative party in group proceedings only where the applicant has satisfied the Lord Ordinary that the applicant is a suitable person who can act in that capacity should such authorisation be given.
(2) The matters which are to be considered by the Lord Ordinary when deciding whether or not an applicant is a suitable person under paragraph (1) include—
(a) the special abilities and relevant expertise of the applicant;
(b) the applicant’s own interest in the proceedings;
(c) whether there would be any potential benefit to the applicant, financial or otherwise, should the application be authorised;
(d) confirmation that the applicant is independent from the defender;
(e) demonstration that the applicant would act fairly and adequately in the interests of the group members as a whole, and that the applicant’s own interests do not conflict with those of the group whom the applicant seeks to represent; and
(f) the demonstration of sufficient competence by the applicant to litigate the claims properly, including financial resources to meet any expenses awards (the details of funding arrangements do not require to be disclosed).
(3) The Lord Ordinary may refuse an application made by an applicant seeking authorisation to be given under section 20(3)(b) of the Act where the applicant has not satisfied the Lord Ordinary that the applicant is a suitable person, in terms of paragraphs (1) and (2), to act in that capacity.
(4) Authorisation given under paragraph (1) endures until the group proceedings finish or until permission is withdrawn.
Replacement of a representative party
(1) A representative party may apply to the court, by motion in Form 26A.8, seeking the permission of the court to authorise, in place of that party, another person as the representative party, who may or may not be a group member.
(2) A group member may apply to the court, by motion in Form 26A.8, seeking the permission to authorise the replacement of the representative party with another person, who may or may not be a group member.
(3) On a motion being enrolled in terms of paragraph (1) or (2), the application is to be brought before a Lord Ordinary on the first available day after being made, for an order for—
(a) intimation and service of the application on—
the defender;
in the case of an application made under paragraph (2), the representative party;
the group members; and
such other person as the Lord Ordinary thinks fit,
in a manner which the Lord Ordinary thinks most appropriate in the circumstances, within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;
(b) such advertisement as the Lord Ordinary thinks...
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