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Reclaiming motion by Steven Blair Milligan against Jaguar Land Rover Automotive Plc and others (Court of Session) [2025] CSIH 16 (27 May 2025)
URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025csih16.html
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[2025] CSIH 16
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2025] CSIH 16
GP2/24 & GP3/24
Lord President
Lady Wise
Lord Clark
OPINION OF THE COURT
delivered by LORD CLARK
in the reclaiming motion
STEVEN BLAIR MILLIGAN
Applicant and Respondent
against
(FIRST) JAGUAR LAND ROVER AUTOMOTIVE PLC; (SECOND) JAGUAR LAND ROVER
LIMITED; (THIRD) CA AUTO FINANCE UK LIMITED; (FOURTH) BLACK HORSE
LIMITED; and (FIFTH) LEX AUTOLEASE LIMITED;
Defenders and Reclaimers
Applicant and Respondent: A Smith KC, Milligan KC, Middleton KC, Black; Drummond Miller LLP
Defenders and Reclaimers: Lord Davidson of Glen Clova KC, Boffey; CMS Cameron McKenna
Nabarro Olswang LLP
27 May 2025
Introduction
[1]
Group proceedings in Scotland can be raised only if two separate preliminary
applications are granted in advance. The first is an application to appoint a representative
party and the second is an application for permission to bring the proposed group
2
proceedings. These two applications were made and came before the Lord Ordinary. Each
application was opposed by the defenders. The Lord Ordinary granted the applications.
[2]
The defenders are all Jaguar companies, including the vehicle manufacturers and
related finance companies. They seek to challenge the Lord Ordinary's decision in respect of
each application. In the first application, it is argued that the Lord Ordinary erred in finding
that the applicant, Mr Steven Milligan, had demonstrated that he was a suitable person to be
appointed as a representative party. In the second one, the contention is that the
Lord Ordinary erred in granting permission for the proposed group proceedings, because
the applicant (i) did not have a prima facie case and (ii) had not demonstrated that the
proceedings had any real prospect of success. The applicant argues that the Lord Ordinary
did not err on these matters and, furthermore, as the defenders did not seek leave to reclaim
against the Lord Ordinary's decision to appoint the applicant as the representative party, a
reclaiming motion on that issue is incompetent.
[3]
The summar roll hearing took place on the day after the court heard a reclaiming
motion on similar issues in Mackay v Nissan Motor Co Ltd and others [2025] CSIH 14. The
Opinion of the Court, delivered by the Lord President (Pentland), provides important
guidance about the approach to be taken to preliminary applications in group proceedings,
which is adopted and applied in this reclaiming motion.
Applications
Authorisation as the representative party
[4]
The original applicant to be the representative party was a Ms Rutherford. The
defenders opposed that application. In response, Ms Rutherford sought to amend it, as well
as the application for the grant of permission, and the draft summons, by substituting
3
Mr Milligan in her place. The amendments were allowed by the Lord Ordinary, who noted
that if the applications had not been amended, and the objections averred in the defenders'
answers been proved, he would have refused both applications. He explained his reasons as
to why that would have been the result.
[5]
The applicant applied under section 20(3)(b) of the Civil Litigation (Expenses and
Group Proceedings) (Scotland) Act 2018 for authorisation by the court to be a representative
party to bring group proceedings against the Jaguar companies. The application set out his
own claim in respect of three cars. A description of the group of persons on whose behalf
proceedings are intended to be brought was given. It comprised 6,465 pursuers, who have
purchased, owned or leased Jaguar or Land Rover vehicles containing Euro 5 or Euro 6
diesel engines.
[6]
In the application, the averments include the following:
"(b)
Diesel engines produce a range of polluting emissions. Under normal road
use conditions, the relevant diesel engines within said vehicles failed to comply with
EU and UK regulatory standards as regards harmful NOx emissions. Accordingly,
Jaguar Land Rover Automotive Plc and Jaguar Land Rover Limited unlawfully
designed, manufactured and installed prohibited defeat devices into said vehicles,
which detected when said diesel engines and their emissions levels were being tested
for compliance with said regulatory standards and turned on full emissions controls
for the duration of such testing. The use of said defeat devices enabled said diesel
engines to comply with the regulatory standards as to NOx emissions during testing,
but which permitted the continued emission of excessive and harmful levels of NOx
during normal, on-road driving conditions...
(c)
...Jaguar Land Rover Automotive Plc and Jaguar Land Rover Limited
unlawfully obtained type-approval for their vehicles by failing to disclose the use of
prohibited defeat devices. Thereafter, Jaguar Land Rover Limited issued COCs
[Certificates of Conformity] for the Jaguar and Land Rover vehicles, which were
invalid inter alia on the basis of that type-approval.
(d)
...Jaguar Land Rover Automotive PLC and Jaguar Land Rover Limited
fraudulently, which failing, negligently, misrepresented to the Applicant and to the
other group members that their vehicles and their Euro 5 or Euro 6 diesel engines
had been tested and complied (without unlawful modification) with EU and UK
statutory requirements...In situations where the vehicles were purchased with
4
finance supplied by CA Auto finance UK Limited, Black Horse Limited or Lex
Autolease Limited, those entities were in breach inter alia of the contractual terms..."
[7]
The steps taken by the applicant to identify and notify all potential members of the
group about the group proceedings are stated in the application. It also mentions the firm of
solicitors who represent the applicant and the group members, and the steering group of
agents which comprises that firm and five other firms. The agents had taken substantial
steps to identify and notify all potential members of the group about the proceedings. They
had carried out a significant amount of advertising on UK television and online.
[8]
The applicant is said to be an appropriate and suitable person who can fairly and
adequately represent the interests of the group, should authorisation be given by the court.
In terms of his own abilities and expertise, it is fair to say that he has none, other than his
own experience with his own vehicles. But while he personally does not have any special
ability or expertise, the legal representatives and funders have such characteristics. The firm
representing the applicant has the relevant ability, competence, expertise and funds
properly to prosecute the group proceedings on behalf of all the members. In relation to the
applicant's own interest in the proceedings, it is for the potential award of damages. The
granting of the current application per se will not confer any potential or particular benefit
(financial or otherwise) upon the applicant. His only potential benefit, in common with the
other members of the group, is his own claim for damages.
[9]
It is confirmed that the applicant is independent of the defenders. He is a nominal
representative for the entire group. The day-to-day running of the group proceedings will
be the responsibility of the agents comprising the steering group and of the independent
counsel instructed. In terms of the funding arrangement in place, all group members are
obliged to co-operate with their respective agents, not to deliberately mislead them and to
accept their bona fide professional legal opinions. In return, the agents have undertaken to
5
perform all necessary work in pursuing group members' claims and to abide by legal
professional standards. The applicant's own interests are entirely aligned and do not
conflict with those of the other members of group whom he seeks to represent. The
applicant and all of the group members are funded by Quantum Claims Compensation
Specialists Limited ("Quantum Claims"), who confirm that they will indemnify their clients
in respect of any adverse awards of expenses made against them.
Permission to bring group proceedings
[10]
In the application for permission to bring the group proceedings it is said that all of
the claims raise issues of fact and law that are either the same as, or are similar or related to,
each other. Reference is made again to the firm of solicitors and the steering group. The
applicant and the group members have at least a prima facie case against all of the proposed
defenders. It is more efficient for the administration of justice for the claims to be brought as
group proceedings, rather than as separate individual proceedings. The raising of group
proceedings will make enormous savings in terms of expense and the time and effort of
agents, counsel and, in particular, the court. To refuse this application and to require each
group member to raise individual actions (even if conjoined or to run procedurally in
tandem) would impose an inordinate and unnecessary burden of multiplication on the
group members, the defenders, their legal advisors, and the court.
[11]
The proposed group proceedings have substantial and very real prospects of success.
There are proceedings regarding the same issues in other jurisdictions. There are 6,465
group members. Any further advertisement may increase that number. There may be
smaller groups whose characteristics are defined by issues such as different models of
vehicle; different engine size; whether the vehicle was owned or leased; whether the
6
vehicle was new or second-hand; different periods of ownership/leasing; and therefore
different values of claims. A list of persons who have consented to being members of the
group on whose behalf group proceedings are proposed to be brought is attached to the
application.
The Lord Ordinary's decision and reasons
[12]
The application for authorisation to be a representative party was opposed by the
first, second and third defenders and the application for permission to bring group
proceedings was opposed by all defenders. Both applications were dealt with at a hearing.
[13]
Two separate interlocutors were issued by the Lord Ordinary on 29 October 2024. In
one interlocutor, he authorised the applicant to be the representative party in the proposed
group proceedings against the Jaguar companies, and ordered that the authorisation was to
endure until the group proceedings finished or until permission was withdrawn. In the
other interlocutor, the Lord Ordinary granted permission to bring group proceedings under
section 20(5) of the 2018 Act and in terms of Rule of Court 26A.12 made several orders,
defining the group and the issues as:
"Claims arising from NOx emissions issues affecting Jaguar Land Rover diesel
engines manufactured to [E]uro 5 or [E]uro 6 emissions standards";
The Lord Ordinary made a number of further orders in that interlocutor, including service
of the summons, lodging of defences, lodging the group register, stating that the procedure
was sufficient to permit any individual to become a group member or to withdraw consent
as a group member, fixing further procedure and requiring the applicant to advertise the
granting of permission.
[14]
On the question of authorising a representative party, regard was had to all of the
matters set out in Rule 26A.7(2). The applicant was a member of the group and satisfies the
7
abilities and expertise required. His interest in the proceedings, and his financial benefit,
was the same as any other group member. He was independent of the defenders. He could
be expected to act fairly and adequately in the interests of the group as a whole and would
be advised by a firm of solicitors acting in accordance with its legal and professional
obligations, (including its professional obligations in respect of success fee agreements) and
so there was no conflict of interest.
[15]
In relation to the funding position, Quantum Claims had given an undertaking to the
court that it would indemnify the applicant and group members in respect of awards of
expenses made against them in the course of the group proceedings. In light of the
undertaking, and the underlying strength of Quantum Claims' balance sheet, the applicant
had sufficient financial resources to meet any expenses. As to the defenders' concerns that
Quantum Claims has overextended itself in respect that it is funding a number of diesel
emission cases, if the financial position of the applicant or Quantum Claims changed during
the course of litigation, then it would be open to the defenders to seek caution for expenses.
[16]
The first to third defenders raised the issue of dominus litis. In Scots law, expenses
may be awarded against a person who is not a party to the action if that person has an
interest in the subject matter of the action and controls and directs the litigation (Cairns v
McGregor 1931 SC 84, at p 89). The expenses of an action can be recovered from the dominus
litis. So, if, for example, due to changes in circumstances neither the applicant nor Quantum
Claims ultimately had the financial resources to meet an award of expenses and if there was
a dominus litis, expenses could be recoverable from that dominus litis instead. It was
premature to address the question of dominus litis. On the basis of the undertaking granted
by Quantum Claims, the applicant had the financial resources to meet any expenses awards.
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[17]
On the application to bring group proceedings, the first point of challenge by the
defenders was that the issues require to be the same as, or similar or related to each other.
Counsel submitted that as there was a very large number of different makes, models and
versions of cars produced over a long period of time, and differences in the claimants'
acquisition of these cars as to whether they were purchased, leased, hire-purchased,
purchased new or purchased second hand, the statutory requirement was not satisfied. The
central issue, as set out in the first conclusion sought in the summons, was whether:
"diesel engines purportedly manufactured to Euro 5 and Euro 6 emissions standards,
which are the subject matter of these group proceedings, incorporated prohibited
and unlawful defeat devices, the purpose of which was unlawfully to control
nitrogen oxide emissions levels during regulatory engine testing, for the purposes of
obtaining EC type-approval under EU Directive 2007/46/EC"
It made no difference if this issue arose over various models and purchase methods. The
whole point of group proceedings was to allow claims such as this to be brought together
rather than thousands of individual claims having to be made. The statutory test under
section 20(6)(a) was satisfied.
[18]
On the defenders' contention that there was a lack of a prima facie case, there had
been various criticisms of the drafting of the summons, including that the pleadings were
not of the necessary specificity required for fraud (Marine & Offshore (Scotland) Limited v Hill
2018 SLT 239, at para [16]). At this stage in the proceedings, the court did not require the
pleadings to be fully developed. All that was required was a prima facie case. Once
permission was granted, the summons would be served, answers lodged and parties would
be given a period of adjustment in which to finalise their pleadings. If, by the end of that
period of adjustment, the pleadings were inadequate, whether in respect of specificity of
fraud or for other reasons, the defenders could seek to have the summons dismissed, or
parts of it excluded. The draft summons set out a prima facie case. Whether it was robust
9
enough to survive debate after both parties had fully pled their cases was not a matter for
this stage of proceedings.
[19]
The defenders submitted that it was not in the efficient administration of justice to
grant permission for group proceedings to proceed where the proposed group register
revealed the duplicate nature of many of the claims being brought. Had the claims been
raised individually, it was more likely than not that the duplication and proliferation of
repeat claims would not have happened. However, it was in the efficient administration of
justice for claims involving large numbers of claimants to proceed by group proceedings
rather than individual cases. If the defenders' argument were to be accepted, some 6,500
individual claims would be brought instead of this one. If there were duplications or other
errors in the group register, the remedy for that was for the applicant to correct the group
register, rather than to prevent the group proceedings proceeding at all.
[20]
The test of real prospects of success was not a high one. The defenders had
submitted that if the applicant had a sound evidential basis for his averments, it ought to
have been produced. The court would have to consider (1) the unclear nature of the loss
suffered by any group member; (2) the effect of section 5(A4) off the European Union
(Withdrawal) Act 2018 on the applicant's reliance on EU case law; and (3) prescription. All
of these matters fell to be dealt with once the summons was served and answers lodged. To
require evidence to be lodged at the permission stage and to require legal argument on those
issues, would be to turn the preliminary certification stage into a full hearing on the
substance of the case. All that was required at this stage was that the averments
demonstrated a real prospect of success. The test was not to be interpreted as creating an
insurmountable barrier which would prevent what might appear to be a weak case from
being fully argued in due course: there required to be a prospect which was less than
10
probable success, but which was real and had substance (Wightman v Advocate General 2018
SC 388 at para [9]; Mackay v Nissan Motor Co Ltd and others [2024] CSOH 68, at para [46]).
The test had been met in this case.
[21]
In the course of his reasoning the Lord Ordinary referred, on occasions, to a previous
case he had decided (Bridgehouse v Bayerische Motoren Werke AG 2024 SLT 116).
Submissions for the reclaimers
Appointment of the representative party
[22]
The Lord Ordinary erred in his interpretation, and application, of RCS 26A.7. The
office of representative party was one of considerable importance and responsibility. The
onus was on the applicant. Supporting evidence and vouching required to be lodged and
tested. No attempt to do so had been made by the applicant. Reference was made to
Thompsons Solicitors Scotland v James Finlay (Kenya) Ltd 2022 SLT 731 (paras [25]-[27]). The
inherent conflicts of interest between the solicitors/funders/insurers and the group members
(and indeed within sub-groups of members) were myriad. The Lord Ordinary had nothing
before him that might sensibly be seen as a "demonstration" of how the applicant might act,
particularly in the management of those conflicts of interest.
[23]
The Lord Ordinary's approach in Bridgehouse was incorrect. Equiparating the
representative party to being "in a similar position to any litigant, in that he takes advice
from and gives instructions to his lawyers" denuded the statutory role of its intended effect.
In this context, the issue of dominus litis became acute, going far beyond the limited
perspective employed by the Lord Ordinary regarding possible expenses awards.
[24]
There was a significant number of group proceedings involving diesel car
manufacturers, with the same apparent indemnifier, Quantum Claims, pending before the
11
court. The current litigation was unlikely to confine itself to the sums revealed in the
accounts of Quantum Claims. The latest statutory accounts to 30 April 2024, now publicly
available, suggested a worsening cash position. Access to justice was prayed in aid to treat
the applicant benignly, but justice necessarily also included treatment of the defenders. On
any view, the material before the court on the financial standing of Quantum Claims was
inadequate. If all of the so-called "diesel emissions claims" against 18 manufacturers in
Scotland were to fail, it was unlikely that the balance sheet of Quantum Claims would cope.
That the defenders could seek caution for expenses was not an answer.
[25]
Plainly, the applicant was not dominus litis. His lack of mastery or control of the
cause went to the heart of the court's consideration of whether to authorise him as
representative party. As for any question of a dominus litis being assessed, the
Lord Ordinary considered that could be left to "the end of the day" (at para [28]) when
ex hypothesi Quantum Claims could not meet an expenses award. By then, it would be too
late to begin a search for a dominus litis. It was not access to justice, properly understood, if
one party having identified the financial weakness of the other party was obliged
nonetheless by the court to take the risk of very substantial unmet awards of expenses. The
demonstration of financial resources to the Lord Ordinary, required by RCS 26A.7(2)(f), was
not sufficient, properly vouched or assessed by reference to the financial risks facing the
identified funder.
[26]
The approach taken also risked leaving Scotland, as a jurisdiction, out of step with
prevailing practice elsewhere in the United Kingdom, where considerably more scrutiny
appears to be applied (Riefa v Apple Inc and others [2025] CAT 5 and Smyth v British Airways
12
Permission to bring group proceedings
[27]
The Lord Ordinary erred in finding that the representative party had demonstrated a
prima facie case. The draft summons which accompanied the application for permission was
wholly lacking in relevancy and specification. The Lord Ordinary erred in considering that
the pleadings need not be tested until the end of a period of adjustment. To the extent that
he tested the pleadings at all, his conclusion that a prima facie case was set out was wrong. A
fortiori, it had not been demonstrated that the proceedings had any real prospects of success.
[28]
The proposed proceedings were framed as a "copycat" of the VW Group allegations
concerning cycle recognition devices. Bald averments were made, in essence, equiparating
the reclaimers to other manufacturers in the industry. There was, and remained, no basis for
that. The Department for Transport Report of April 2016 relied upon by the applicant
expressly concluded that no manufacturer tested in that report, other than those belonging
to the VW Group, were found to use cycle recognition devices. There was no evidence
produced by the applicant to support his allegation that the proposed group members'
vehicles contained or contain cycle recognition devices. Allegations of fraud required a
responsible basis for so pleading. An "off the peg" effort of copying/pasting pleadings
directed against other manufacturers, without considering the responsible basis for directing
such averments against these defenders, was an approach which ought not to result in a
prima facie case being established. To hold unspecific allegations to amount to revealing a
prima facie case of fraud by the defenders was plainly wrong. The defenders were entitled to
be protected by the court from unspecific, content-free accusations of fraud. Simply
proceeding under the group procedure rules, broadly equivalent to commercial procedure,
did not absolve the applicant of the requirement to aver pleadings of the necessary degree of
13
specificity required for fraud (Marine & Offshore (Scotland) Ltd v Hill, per Lord President
(Carloway), at para [16]).
Competency of the challenge to appointment of the representative party
[29]
The applicant's challenge to the competency of this part of the reclaiming motion
was misconceived. No note of objection in terms of RCS 38.12 was made timeously by the
applicant. The appeal was against an interlocutor falling squarely within the ambit of
RCS 38.3(3)(a). That the two applications were allocated different process numbers by the
court appeared to be an administrative step, rather than reflecting any substantive practice
or procedure. Analogy could be drawn with the court's management of liquidations, where
a multitude of different applications require to be made by note in a single liquidation cause
over its lifecycle before the court, all of which are allocated separate process numbers. Here,
the two applications arose in a single group procedure cause. The Lord Ordinary had,
sensibly, issued one opinion, dealing with both issues. He reflected his decision in the
interlocutor of 29 October 2024, which both granted permission for the group proceedings,
and also stated at paragraph 2 of that interlocutor that the applicant was to be the
representative party. The appeal was against that interlocutor.
[30]
In any event, by virtue of RCS 38.6, the effect of reclaiming was to submit to review
all previous interlocutors in the cause. Plainly, the two applications formed part of a single
cause. To treat them as separate made little procedural sense, arising as they did in the
context of one single group proceeding. Even if that approach was incorrect, if the
application for representation was a separate cause, a final decision on it was reached by the
Lord Ordinary and that could therefore be reclaimed without leave.
14
Submissions for the applicant
Appointment of the representative party
[31]
In the event that the court considered that it could competently review the decision
to appoint the applicant, the Lord Ordinary did not err in finding that the applicant was a
suitable person to be appointed. Rule 26A.7(2) only requires the Lord Ordinary to consider
the factors stated, which are neither mandatory nor exhaustive. The only mandatory
requirement is that the applicant is a suitable person, which simply means that the proposed
representative party will prosecute the action efficiently and effectively. It is only if the
applicant is clearly unsuitable that the application should be refused (such as Thompsons
Solicitors Scotland v James Finlay (Kenya) Ltd) where there was an impression of a conflict of
interest). This approach had been taken in many cases. The bar to appointment was and
should be low. It would be an impediment to access to justice if the bar was high. The rules
provide safeguards for members of the group in respect of the representative party. First,
any member can challenge the representative party and seek to be appointed in his place
(Rule 26A.8(2)). Second, any settlement must be achieved only after consultation with the
other group members (Part 10, Rule 26A.30).
[32]
While the onus to satisfy the court that the applicant was a suitable person to act in
the capacity of representative party was plainly on the applicant, which had been the
Lord Ordinary's approach, how could the applicant demonstrate suitability other than by
recording an absence of factors indicative of unsuitability? The reclaimers appeared to
envisage a more exacting standard be applied to suitability, although did not indicate what
they considered the representative party required to demonstrate and how he should do
that. Insofar as the Lord Ordinary referred to and placed reliance upon his decision in
Bridgehouse, he was correct to do so.
15
[33]
The applicant in this case was in essence an ordinary and willing member of the
group. There was an experienced legal team, including three senior and junior counsel, a
team of solicitors from a large firm, and other Scottish firms who are part of a steering group
of agents. All have worked in multi-party litigation in Scotland. There were no factors
pointing away from suitability (and the reclaimers appeared not to found upon any). The
absence of special abilities and relevant expertise (which was accepted) was not a
determinative matter, but merely one of the issues which the Lord Ordinary required to
consider in determining suitability.
[34]
The reclaimers' assertion that the applicant as representative party was plainly not
dominus litis was unfounded. In any event, the Lord Ordinary was correct (at
paras [27]-[29]) to note that the question of dominus litis was a matter which was in any event
premature and of little relevance to the issues which he required to address at the stage of
determining suitability.
[35]
In relation to funding, all that was required was for the nature of the applicant's
financial resources to meet any award of expenses to be explained, i.e. whether they were
self-funding or receiving third party financial support. Where the pursuer relied on funding
from a third party (as here), the details of the funding arrangements need not be disclosed.
The representative party had confirmed that Quantum Claims were providing funding to
him and the group members. An undertaking had been provided on behalf of Quantum
Claims to that end. Quantum Claims had been operating as litigation funders in Scotland
for around 35 years. They had been responsible for funding many litigations, both on behalf
of individuals and multi-party actions. They had never failed to meet any award of
expenses in their history. The provision of funding by Quantum Claims was apt to
demonstrate that the applicant had sufficient financial resources to meet any adverse
16
expenses awards. Their public accounts had been available to the Lord Ordinary and
disclosed cash in hand of over £3.9m and net assets of £8.9m. If that was not adequate to
demonstrate financial suitability, then access to justice would scarcely be available in
Scotland for cases of this nature.
[36]
The general principle was that even an impecunious litigant was entitled to advance
a stateable case other than in exceptional circumstance (McTear's Executrix v Imperial Tobacco
Ltd 1996 SC 514). In any event, assessing the applicant as suitable did nothing to prejudice
the reclaimer's ability to apply to the court to require him to find caution, should that be
considered to be a step capable of justification.
Permission for group proceedings
[37]
At this stage the court was not adjudicating on the merits of the issues in dispute.
All that was required to satisfy the requirement of a prima facie case was that the
representative party had demonstrated that there was a case to state and a case to answer.
The requirement for real prospects of success had broadly the same meaning as in the test
for permission to bring a judicial review, namely that prospects were real, i.e. genuine rather
than fanciful or speculative. The test was not one of probabilis causa (Wightman v Advocate
General for Scotland, at para [9]).
[38]
The purpose of the rules was to filter out obviously unmeritorious claims and no
more. Having regard to the details provided in the application for permission, the summons
as drafted, and the material lodged in support, the applicant had demonstrated a prima facie
case and real prospects of success to the Lord Ordinary, and consequently the
Lord Ordinary's determination was without fault. Further questions as to the substantive
17
merit or otherwise of the representative party's averments, including relevancy and
specification, were for a later date.
[39]
Similar submissions to those made in Mackay v Nissan Motor Co Ltd and others about
delay and there being an unfortunate proliferation of protracted procedure at the
appointment and permission stages of group proceedings were also advanced.
Competency of the challenge to appointment of the representative party
[40]
While it was correct that the applicant had not marked an objection to the
competency of the reclaiming motion, that was because it was not known until the grounds
of appeal were presented that the reclaimers sought to bring under review the decision to
appoint the representative party. Nevertheless, it was still open to the representative party
to raise the matter of competency (AB and CD, Petrs, 1992 SLT 1064).
[41]
The rules of court envisage that the applications will be dealt with sequentially, and
there must be a representative party appointed before an order for proceedings to be
brought can be pronounced. The summons which informs the application for permission
was framed in the name of the representative party (Thompsons Solicitors Scotland v James
Finlay (Kenya) Ltd, para [14]). There could be no successful application for permission to
bring group proceedings without an appointed representative party. Refusal of an
application by an applicant to be a representative party was, therefore, a practical barrier to
a grant of permission to bring group proceedings in favour of that applicant. The
applications were separate causes. The interlocutors submitted for review were those
concerned only with permission to bring group proceedings. To reclaim the appointment of
the applicant the reclaimers required to seek leave to appeal and have leave granted
(RCS 38.2(6); 38.3(3)(a), and Bridgehouse).
18
Analysis and decision
[42]
The opinion of the court in Mackay v Nissan Motor Co Ltd and others [2025] CSIH 14
explains the key elements on the introduction of group proceedings in Scotland, the
statutory provisions under the Civil Litigation (Expenses and Group Proceedings) (Scotland)
Act 2018, the relevant Rules of the Court of Session (Chapter 26A), and the Practice Note
(Practice Note No 2 of 2020). It also sets out the policy aims of the 2018 Act, the test for the
court reviewing discretionary decision-making, and this court's decision on the proper
approach to be taken on the appointment of a representative party and permission to bring
group proceedings. In that case the issue of competency of the reclaiming motion of the
appointment also arose.
[43]
In summary, decisions to authorise an individual as the representative party and to
give permission for proposed group proceedings to be brought are discretionary in nature.
Whether to grant or refuse the applications does not involve hard-edged questions of legal
principle of the type that are amenable to review on their merits by an appellate court.
Rather, such decisions entail the exercise of broad powers of case-management in the overall
interests of the fair administration of justice and can only be reversed on appeal in strictly
constrained circumstances. The resolution of such questions falls pre-eminently within the
discretionary sphere of decision-making entrusted to the Lord Ordinary. As in the Mackay
case, the Lord Ordinary in the present case is not only an experienced commercial judge, but
also one with considerable experience of handling group proceedings, exemplified in his
opinion in Bridgehouse v Bayerische Motoren Werke AG 2024 SLT 116 Exercise of the broad and
discretionary case-management powers requires a pragmatic and realistic approach to be
adopted with a particular emphasis being given to ensuring that the underlying policy, aim
and purpose of the 2018 Act is given proper effect.
19
[44]
McKay also reiterates the well-established test for this court when invited to interfere
with a discretionary decision, namely whether the Lord Ordinary misdirected himself in law
or otherwise transgressed the limits of discretion reposed in him so as to permit an appellate
court to intervene and set aside his decision (Forsyth v A F Stoddard & Co Ltd 1985 SLT 51,
Lord Justice Clerk (Wheatley) p 53). The Inner House will not overrule the discretion of a
lower court merely because it might have exercised it differently (Thomson v Corporation of
Glasgow 1962 SC (HL) 36, Lord Reid p 66).
Appointment of the representative party
[45]
This issue was not the subject of an application for leave to reclaim and there was no
reclaiming motion enrolled in respect of it. The reclaimers sought dispensation of the
requirement to enrol a reclaiming motion in this representative party action, and any
requirement to lodge papers. That matter is considered below, together with the issue of
competency. We will first explain the court's position on the reclaimers' submissions about
authorisation of a representative party.
[46]
When determining the suitability of the applicant, which senior counsel for the
reclaimers accepted was the core criterion, the Lord Ordinary considered all of the elements
of RCS 26A.7 and the full information before him. He found that the applicant is a member
of the group and satisfies the abilities and expertise required; his interest in the proceedings,
and his financial benefit, is the same as any other group member; he is independent from
the defenders; he can be expected to act fairly and adequately in the interests of the group
as a whole; he will be advised by a firm of solicitors acting in accordance with its legal and
professional obligations, (including its professional obligations in respect of success fee
20
agreements); and there is no conflict of interest at this stage. In reaching his view, the
Lord Ordinary referred appropriately to his earlier decision in Bridgehouse.
[47]
The Lord Ordinary did not err in his interpretation and application of RCS 26A.7.
The reclaimers' contention as to the nature of the test, arguing that the representative party
is not in the same position as an ordinary would-be pursuer and must lodge supporting
evidence and vouching to demonstrate his suitability, goes too far. It is not correct that the
complexity and seriousness of the allegations made against the reclaimers demanded
demonstration and evidence of the applicant's ability and skills to discharge his function
competently. As explained in Mackay, the one overriding requirement is suitability and that
has to be assessed in a holistic fashion, taking account of all of the relevant features in the
particular case and having regard to the considerations mentioned in RCS 26A.7(2).
[48]
The reclaimers' argument that the Lord Ordinary cumulatively failed to give due
weight and consideration to the factors set out in RCS 26A.7 cannot succeed. The weight to
be given to the various individual points was quintessentially for the Lord Ordinary to
determine, as the discretionary decision-maker. Before we could interfere with his
assessment, we would require to be satisfied that he has left out of account some relevant
factor or taken account of an irrelevant consideration or that his decision was in some sense
wholly unreasonable or unjudicial. There is no basis to conclude that the reclaimers'
submissions have met this test.
[49]
The reclaimers focus in part on the absence of material before the court to show that
the applicant was a suitable appointee, including why he had been selected, what qualities
he possessed, his ability and skills and nothing "to suggest any kind of mastery or control of
the cause". However, no negative information of any kind about the applicant's suitability
was put before the Lord Ordinary (nor to us). As noted above, when the first applicant
21
(Ms Rutherford) sought authorisation to be the representative party the defenders objected
to her appointment and the application was amended to substitute Mr Milligan in her place.
No objection raising any such negative factors was made about Mr Milligan. In those
circumstances, as observed in Mackay, it is difficult to see what more the applicant can
reasonably be expected to do in order to demonstrate his suitability. He is in the same
position as in that case: an ordinary and willing member of the group of claimants; with the
benefit of representation by an experienced team of solicitors from a large firm, which has
developed expertise of acting in multi-party litigation, a steering group of solicitors, with
similar experience and independent counsel.
[50]
RCS 26A.7(2)(e) and (f) use the word "demonstration" and the reclaimers contend
that the onus is on the applicant to carry out the demonstration. The conclusion to be
reached on that matter is plainly something which is open to inference by the Lord Ordinary
on the basis of the information before him, including nothing to suggest that the applicant
would not act fairly and adequately or that he had any conflict of interest. In the absence of
such information, the test is a low bar.
[51]
We reject the reclaimers' criticisms about information on financial resources to meet
the expenses. The Lord Ordinary made clear that the funders, Quantum Claims, had given
an undertaking to the court to indemnify the applicant and group members in respect of
awards of expenses. He also referred to the underlying strength of the balance sheet. While
Quantum Claims is involved in the funding of a number of diesel emission cases, that does
not cause the financial resources to be insufficient. Their involvement in the Mackay case,
criticised on a similar basis, was not seen as problematic. As the Lord Ordinary observed, it
will be open to the defenders to seek caution later if circumstances justifying that approach
should arise.
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[52]
The first to third reclaimers raised before the Lord Ordinary the issue of dominus litis.
The Lord Ordinary explained that, on the undertaking given by Quantum Claims, the
applicant has the financial resources to meet any expenses award. That being so, there was
no need to consider alternative sources for payment of an award of expenses, such as
dominus litis. That is plainly correct. In this reclaiming motion, it was said that the question
is who is in control for the proper administration of justice and that a "random individual"
as the representative party is not in control. However, the representative party has a distinct
role and his legal team have their own separate duties and responsibilities.
[53]
It follows that that the reclaimers' criticisms of the Lord Ordinary's decision in
Bridgehouse, one of the central themes in their submissions, are unfounded. His approach
was correct and indeed, as he said in the opinion (at para [44]) an unduly restrictive
approach to the appointment of a group member as group representative could discourage
the bringing of group proceedings in Scotland and would run counter to the policy objective
of broadening access to justice. It is obviously correct that an ordinary litigant in a civil case
can proceed without the authorisation required before bringing group proceedings, but as
noted it is a low bar. It is not, despite the reclaimers' protestations to the contrary, an
onerous test.
[54]
The reclaimers made reference to certain English authorities on group proceedings,
seeking to draw from them that considerably more scrutiny requires to be applied when
dealing with representation. However, the factual circumstances of these cases differ from
what is before the court in the present case. In Riefa v Apple Inc and others
Competition Appeal Tribunal reached the view that the applicant was extremely reliant on
her legal advisers (para 89) and that there were considerable doubts about whether they
could be satisfied that she would fairly and adequately act in the interests of the class
23
members, for the purposes of the authorisation condition (para 91). In Smyth v British
Airways plc
a
the court's attention, such as that someone other than the applicant would be the person
who was really running the litigation (para 36). No such matters arise in this case.
[55]
In any event, in reaching our decision we have had regard to the policy
considerations reflected in the 2018 Act and interpreted the statutory provisions and rules of
court applicable to group litigation in Scotland. It is perhaps worth recalling that if the
previous person originally named as the applicant had remained as the proposed applicant,
the Lord Ordinary would, if the problems raised were established, have refused both
applications. This illustrates that any legitimate matters of concern would have been fully
taken into account.
[56]
Accordingly, there is no basis for the court to interfere with the Lord Ordinary's
decision to grant the application for appointment of the applicant as the representative
party.
Permission to bring group proceedings
[57]
Once again, this involves a discretionary decision reached by the Lord Ordinary.
The test for the Inner House to interfere with the exercise of his discretion is not met. The
central points raised by the reclaimers are whether the applicant had demonstrated that
there was a prima facie case and that there was a real prospect of success. In Mackay, the
authorities on those matters are mentioned, as are the tests to be applied. Applying them in
the context of the present action, it is clear that the Lord Ordinary reached the correct
conclusion on each point. On prima facie case, his view that questions of relevancy and
specification are not dealt with at this juncture in the action is correct. The question of
24
allegedly unspecific allegations of fraud made in the draft summons is again a matter to be
dealt with when the pleadings are finalised. The low test for a prima facie case at this
preliminary stage is met. The argument that there was no basis for the averments made that
the proposed group members' vehicles contained cycle recognition devices is plainly a
matter to be dealt with as the case progresses. It is clear that the Lord Ordinary has
extensive case-management powers (RCS 26A.22). The test for real prospects of success is
again plainly met.
Competency of challenge to appointment of the representative party
[58]
The reclaimers' argument that an interlocutor of 29 October 2024 granted permission
for the group proceedings and stated that the applicant was the representative party is
correct, but that was the interlocutor dealing with permission for group proceedings. The
authorisation matter was dealt with in a separate interlocutor of the same date. Similar
issues on competency as raised in the reclaiming motion in McKay arise here, as the only
reclaiming motion enrolled was against the Lord Ordinary's decision granting permission to
bring group proceedings. In short, in relation to the reclaimers' arguments about the two
applications forming part of single proceedings, we will adopt the same approach as taken
in Mackay and reject that contention for the reasons explained therein. As a consequence,
there is no competent appeal before the court challenging the Lord Ordinary's decision to
authorise the appointment of the representative party.
[59]
Senior counsel for the reclaimers made the valid point that if these are separate
preliminary proceedings, the right to bring a reclaiming motion after the final decision on
representation is made arises without the need for leave. However, there requires to be a
reclaiming motion on the particular interlocutor that is challenged. This realisation resulted
25
in senior counsel making a motion at the bar for dispensation of the requirement to have
brought a reclaiming motion on that decision, along with dispensation of timetable
requirements and the need for a procedural hearing. Senior counsel for the applicant
recognised that the court may wish to deal with the challenge to the Lord Ordinary's
decision on representation. The court's views on that matter are set out above. Had there
been a competent reclaiming motion to that effect it would have been refused. However, in
circumstances where no reclaiming motion has been enrolled against the relevant
interlocutor it is not appropriate to allow that matter to be reclaimed.
Disposal
[60]
We will refuse the reclaiming motion on the application for permission to bring
group proceedings. The reclaimers' motion for dispensation with various requirements of
the rules and to allow the appointment of the representative party to be reclaimed is also
refused, albeit that even if allowed it would have failed for the reasons explained above. All
questions as to expenses are reserved.