[2026] CSIH 32 — Group Proceedings: Authorisation Refusals Are Reclaimable Without Leave; Superiority/Efficiency Is a Discretionary, Early-Stage Assessment

1. Introduction

In Michelle Donnelly against Johnson and Johnson Medical Limited ([2026] CSIH 32, Extra Division, Inner House), the applicant sought (i) authorisation to act as a representative party and (ii) permission to bring group proceedings under Chapter 26A of the Rules of the Court of Session. The proposed group comprised 17 claimants advancing product liability and negligence claims concerning five different hernia mesh devices designed/manufactured/supplied by the respondent company.

The Lord Ordinary had accepted there was a prima facie case with real prospects of success and that there were common factual issues ([2025] CSOH 77). However, he refused permission solely because it had not been demonstrated that group proceedings would be a more efficient administration of justice than separate individual proceedings (the “superiority” or “efficiency” requirement in rule 26A.11(5)(c)). Consequentially, he refused authorisation. The applicant reclaimed (appealed) both refusals.

Two issues dominated the Inner House decision:

  • Procedure: whether leave to reclaim was required against refusal of authorisation (given rule 38.3(3)).
  • Substance: whether the Lord Ordinary’s discretionary conclusion on “efficiency/superiority” should be overturned.

2. Summary of the Judgment

  1. Leave to reclaim on authorisation: the Inner House held that, because authorisation and permission applications are treated as stand-alone proceedings with their own case numbers, an authorisation decision is a final interlocutor disposing of that proceeding. Accordingly, it is reclaimable without leave under rule 38.2(1), notwithstanding the wording of rule 38.3(3).
  2. Permission/superiority: the court refused to interfere with the Lord Ordinary’s refusal of permission. The applicant had not met the high threshold for appellate intervention in a discretionary decision and, importantly, had not put certain efficiency factors (now relied upon) before the Lord Ordinary in the application.
  3. Authorisation: authorisation is granted only in relation to particular group proceedings; once permission failed, authorisation necessarily failed too.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

(a) The appellate restraint standard for discretionary case management decisions

  • Mackay v Nissan Motor [2025] CSIH 14; 2025 SLT 629 and Mackay v Nissan [2025] CSIH 14; 2025 SC 349: relied upon for two linked propositions:
    • Certification/permission is not a formality (the court must be satisfied the rule-based tests are met).
    • Appeals against discretionary permission decisions face a strict threshold: the Inner House will interfere only where there is misdirection in law or a transgression of the limits of discretion.
  • Forsyth v AF Stoddard & Co Ltd 1985 SLT 51 and Thomson v Corporation of Glasgow 1962 SC (HL) 36: classic authorities anchoring the modern approach to appellate review of discretion—no interference merely because the appellate court would have exercised discretion differently.

(b) The “stand-alone proceeding” architecture of Chapter 26A applications

  • Mackay v Nissan [2025] CSIH 14; 2025 SC 349 and Milligan v Jaguar [2025] CSIH 16; 2025 SC 388: used to explain that permission and authorisation applications are processed as separate proceedings. A reclaiming motion in one does not automatically open up interlocutors in the other. In [2026] CSIH 32, the court extends the practical consequences of that architecture: because authorisation proceedings are stand-alone and end with refusal, the interlocutor is final for rule 38.2(1).
  • Bridgehouse v Bayerische Motoren Werke [2024] CSOH 16: an example where leave to reclaim was sought and refused on an understanding that leave was required; the Inner House clarifies the position in light of later appellate authority and the procedural reality.

(c) The role of “commonality” and product variation in judging efficiency

  • Gilchrist v DePuy International [2023] CSIH 4; 2024 SC 229: invoked by both sides. For the applicant, it exemplified the difficulties of managing numerous individual actions and the value of group procedure. For the respondent (and relevant to the Lord Ordinary’s concerns), it supported caution where findings about one product may have no “read across” to another (the judgment records reliance on Gilchrist at “paragraph 39”).
  • McCallum v Morrison [2023] SAC (Civ) 23; 2023 SLT (SAC) 119: cited to show that Scottish courts can manage connected cases together even outside Chapter 26A, which was relevant to the comparative efficiency exercise.
  • Hastings v Finsbury Orthopaedics [2022] UKSC 19; 2022 SC (UKSC) 43: relied upon for the proposition that, in comparable medical/product litigation, background/generic medical evidence may be capable of agreement, limiting the efficiency gains attributable to grouping.
  • Bridgehouse v Bayerische Motoren Werke [2024] CSOH 2; 2024 SC 270 and Bridgehouse v BMW , supra: used by the applicant to argue that group procedure offers tools (e.g., generic questions) and that insisting on an early “route map” misunderstands the preliminary stage (citing para [69] in Bridgehouse v BMW as recorded).

3.2 Legal Reasoning

(A) The competence point: leave to reclaim against refusal of authorisation

Rule 38.3(3) appears to require leave to reclaim for most interlocutors except those deciding whether to give permission for group proceedings. On its face, authorisation would therefore require leave.

The Inner House held that this literal reading is overtaken by how Chapter 26A operates in practice: authorisation and permission applications, though made by motion, are treated as distinct proceedings with their own case numbers. When authorisation is refused, that authorisation proceeding ends. Under rule 38.2(1), an interlocutor that “disposes of the whole subject matter of a cause” is reclaimable without leave. Therefore, refusal of authorisation is reclaimable without leave as it is a final interlocutor in its stand-alone cause.

This is a significant procedural clarification for group proceedings litigation: parties need not seek leave to reclaim an authorisation refusal (at least where it disposes of that stand-alone authorisation cause).

(B) The “superiority” (efficiency) requirement: its nature and the appellate posture

The central substantive issue was rule 26A.11(5)(c): whether it was shown that group proceedings would be a more efficient administration of justice than separate proceedings. The court explicitly aligns this with a “superiority requirement” known in other class action regimes, while noting it is rule-based in Scotland (not in the primary legislation).

The Inner House emphasised several features of the Scottish model:

  • Preliminary timing: the comparison is made early, on an application for permission, when pleadings/defences and the true shape of dispute may not yet be fully clear.
  • Policy context: drawing from Mackay, the court reiterates that the 2018 Act aims to increase access to justice and enable similar claims to be brought together; the procedure should be handled flexibly and efficiently, without technicality derailing matters at the outset.
  • But still discretionary and fact-sensitive: even if commonality (section 20(6)(a)) is satisfied, superiority may fail in “particular circumstances.”

Importantly, the court rejects any suggestion of an automatic preference for group proceedings whenever two or more related claims exist (a point the respondent pressed, and the court accepted in substance): rule 26A.11(5)(c) would otherwise be redundant.

(C) Why the appeal failed on the facts and materials before the Lord Ordinary

The Inner House found no basis to meet the stringent test for setting aside discretion. It accepted that the Lord Ordinary:

  • reviewed the proposed summons and expert material;
  • identified the potential for substantial individualisation (device-by-device issues; patient-by-patient risk/benefit; causation and quantum; potential prescription/limitation pleas);
  • considered comparative case management possibilities outside Chapter 26A;
  • noted potential disadvantages of group proceedings (e.g., one claim being slowed while preliminary issues are determined in others).

A key practical point was decisive: the Practice Note expects applicants to address permission tests “in detail” in averments. The court held that the application did not mention factors now stressed on appeal (e.g., sheriff court privative jurisdiction/exclusive jurisdiction; time-bar risk). The Lord Ordinary “cannot be expected” to have taken them into account if they were not placed before him. This finding narrows the scope for “appeal by reinvention” of an efficiency case.

(D) Delay in issuing the opinion

Although the applicant attacked the five-month delay as undermining the “summary” nature of the decision and as affecting limitation, the Inner House treated delay as irrelevant to the legal question on appeal: whether the Lord Ordinary misdirected himself or exceeded discretion. The possibility that some delay was attributable to awaiting guidance from Mackay was noted, but did not change the appellate analysis.

(E) Consequence for authorisation

Because authorisation is tied to the specific proposed group proceedings, and permission failed, authorisation could not stand. The court therefore refused both reclaiming motions.

3.3 Impact

(1) Procedural precedent: reclaiming authorisation refusals without leave

The most concrete “new” point is the clarification that, within the Chapter 26A structure treating applications as stand-alone proceedings, an authorisation decision is a final interlocutor for rule 38.2(1). This reduces procedural friction and uncertainty for parties challenging authorisation outcomes, and it harmonises appeal competence with the practical architecture recognised in Mackay and Milligan.

(2) Strengthening the applicant’s burden on superiority at the permission stage

The decision reinforces that superiority is not aspirational rhetoric; it must be demonstrated with reference to the concrete case. Applicants should expect to:

  • articulate where the efficiencies arise (pleadings, disclosure, expert evidence, preliminary issues, hearings);
  • anticipate countervailing inefficiencies (product heterogeneity, fact-specific time-bar, causation/quantum individualisation);
  • place jurisdictional and limitation realities before the court from the outset if they materially support efficiency.

(3) Product-portfolio group claims: the heterogeneity problem

While the court recognised that small group size does not automatically defeat superiority (minimum is two), this case shows the real difficulty of grouping claims that span multiple distinct products with potentially different regulatory histories, design/materials, indications for use, and mechanisms of alleged failure. Future applicants in medical device/product cases spanning several devices may need to:

  • narrow the proposed declarator(s) or structure proceedings to isolate device-specific common issues;
  • propose how generic questions would be framed and sequenced (without needing a fully worked case management plan);
  • explain how any “no read across” risk is mitigated.

(4) Appellate reality: discretionary refusals will often be hard to overturn

By applying Mackay, Forsyth, and Thomson, the Inner House signals that appeals will rarely succeed unless a clear legal misdirection or irrationality is shown. This encourages front-loading of the superiority argument and careful drafting of the permission application.

4. Complex Concepts Simplified

  • Group proceedings (Chapter 26A): a procedure allowing multiple similar claims to be brought and managed together in one Court of Session action, under strong judicial case management powers.
  • Permission vs authorisation:
    • Permission is the court’s decision to allow the group action to proceed.
    • Authorisation is approval of the proposed representative party to act for the group in that action.
  • Superiority requirement (rule 26A.11(5)(c)): the applicant must show it is more efficient for the court system to handle the claims as a group rather than as separate individual actions.
  • Commonality (section 20(6)(a)): claims must raise the same/similar/related issues of fact or law. Commonality supports (but does not guarantee) superiority.
  • Prescription and limitation: time limits after which a claim may be extinguished (prescription) or become unenforceable (limitation). These defences are often highly fact-specific.
  • Final interlocutor: an order that ends a case (or, here, ends a stand-alone application proceeding). Final interlocutors are generally appealable without leave.

5. Conclusion

[2026] CSIH 32 does two important things for Scottish group litigation. First, it clarifies that because Chapter 26A permission and authorisation applications operate as stand-alone proceedings, a refusal of authorisation is a final interlocutor and can be reclaimed without leave under rule 38.2(1). Second, it confirms that the “superiority” test in rule 26A.11(5)(c) is a discretionary, early-stage comparison of procedural efficiency that must be properly evidenced and pled in the permission application; new efficiency arguments raised only on appeal will not readily justify interference with the Lord Ordinary’s discretion.