Historically, it was not possible to raise group proceedings or class actions in Scotland. The introduction of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 changed the landscape in that regard and introduced group proceedings to Scottish litigation, at least in the Court of Session.

Previously, the norm in such cases was for one action, or a select few actions, to be proceeded with. The remaining actions relating to the group, whilst still having to be raised if there were time bar considerations, would be sisted pending the outcome of the lead action(s). Such procedure did not fit well with the recovery of expenses. Whilst possible to identify which court procedure related to which particular action, a difficulty arose insofar as how the work generic to all actions, including those sisted pending the outcome of the lead action(s), should be dealt with. Generally, an account of expenses in each of the sisted actions would be prepared on a block fee basis given the limited court procedure as this would prove more remunerative insofar as the sisted actions were concerned. Strictly speaking, each sisted action’s share of the generic work undertaken for all actions would be subsumed within the block fees charged in each account of expenses. A difficulty arose in that the generic work undertaken in relation to all actions within the group could only be properly quantified by preparation of a detailed account of expenses, therefore falling foul of the rules of court dictating that a solicitor cannot charge his account partly on a detailed basis and partly on a block fee basis.

In one instance, a case proceeded as the lead case with all remaining actions relating to the same subject matter being sisted pending the outcome of the lead case. Generic settlement discussions ensued, resulting in settlement of the lead case and also the various sisted actions. As the settlement discussions took place solely within the lead action, all work, including counsel’s charges were included in the judicial account of expenses for the lead action. Upon taxation of the account of expenses the auditor of the Court of Session determined that the generic settlement discussions required to be apportioned between all cases.