Discretionary, Low-Threshold Tests for Authorisation and Permission in Scottish Group Proceedings

Introduction

This commentary examines the decision in Milligan v Jaguar Land Rover Automotive Plc and others [2025] CSIH 16, a reclaiming motion heard by the Inner House of the Scottish Court of Session on 27 May 2025. The case concerns two preliminary applications under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018: (1) authorisation of Steven Blair Milligan as the representative party for a proposed mass action against Jaguar Land Rover and associated finance companies; and (2) permission to bring group proceedings on behalf of more than 6,400 vehicle purchasers or lessees. The defenders challenged the Lord Ordinary’s interlocutors granting both applications, arguing that the standards for appointment of a representative party (Rule 26A.7) and for permission to bring group proceedings (section 20 of the 2018 Act, Rule 26A.12) were not met. This judgment is significant for clarifying the discretionary nature of those decisions, the low threshold for demonstrating suitability and a prima facie case, and the narrow grounds on which appellate review may be granted.

Summary of the Judgment

The Inner House, in an opinion delivered by Lord Clark, refused to interfere with the Lord Ordinary’s interlocutors. It held:

Authorisation of a representative party under Rule 26A.7 is governed by a broad discretion and a low threshold of suitability. The Lord Ordinary did not err in finding Milligan suitable, given that he is a member of the proposed group, has no conflict of interest, and is backed by experienced solicitors and a funder with resources to meet expenses awards.
Permission to bring group proceedings under section 20 of the 2018 Act and Rule 26A.12 requires only a prima facie case and real prospects of success. It is not a full merits hearing. The Lord Ordinary’s conclusion that Milligan had met these criteria was within his discretionary case-management powers.
Appellate review of these interlocutors is confined to misdirection in law or irrational exercise of discretion. No such misdirection or unfairness was shown.
The challenge to the representative-party appointment was not competent, since no reclaiming motion was enrolled against that interlocutor.

Analysis

Precedents Cited

Mackay v Nissan Motor Co Ltd [2025] CSIH 14: Established the approach to preliminary decisions under chapter 26A and the 2018 Act, emphasising the low-threshold tests and discretionary case-management role of the Lord Ordinary.
Bridgehouse v Bayerische Motoren Werke AG 2024 SLT 116: A prior Lord Ordinary decision endorsed in Milligan for the practical, holistic assessment of a representative party’s suitability.
Wightman v Advocate General 2018 SC 388: Defined “real prospects of success” as less than probable but genuine prospects, applied to the permission stage.
Thompsons Solicitors Scotland v James Finlay (Kenya) Ltd 2022 SLT 731: Contrasted as an example where a proposed representative party was unsuitable due to conflict of interest, demonstrating the low bar only excludes manifestly unsuitable candidates.
Cairns v McGregor 1931 SC 84: On the concept of dominus litis and expense liabilities of those controlling litigation.

Legal Reasoning

The court distilled two central legal principles:

Authorisation of a Representative Party (RCS 26A.7). The sole mandatory criterion is that the proposed representative party be “suitable”—able to act fairly, efficiently, and effectively for the group. The factors listed in Rule 26A.7(2) (membership, abilities, independence, conflicts, and financial standing) guide a holistic assessment, but no single factor is determinative. The Lord Ordinary’s finding of suitability will stand unless it is irrational, based on misdirection in law, or influenced by irrelevant considerations.
Permission to Bring Group Proceedings (2018 Act §20(6), RCS 26A.12). The court at the preliminary stage must be satisfied that (a) all claims raise the same, similar, or related issues of fact or law; (b) the applicant has a prima facie case; (c) proceedings are an efficient way to resolve the disputes; and (d) the group proceedings have real prospects of success. These are not stringent tests—pleadings need not be fully particularised, and evidentiary disputes are reserved for the merits phase. Appellate intervention is limited to cases of procedural unfairness or irrationality.

Impact

This authoritative ruling reinforces the policy of the 2018 Act to broaden access to collective redress in Scotland. By confirming the low bar for representative-party authorisation and group-proceedings permission, and by upholding the Lord Ordinary’s broad case-management discretion, it:

Encourages multi-party claims to be consolidated rather than fragmented into individual actions.
Provides clarity that preliminary hurdles are not full merits hearings—weak but arguable claims may proceed to discovery and full argument.
Dissuades collateral challenges to interlocutors unless a firm showing of legal error or irrationality is made, reducing procedural fragmentation.
Aligns Scottish practice with the policy objectives of collective redress regimes in other jurisdictions, while preserving judicial discretion.

Complex Concepts Simplified

Representative Party (RCS 26A.7): The individual who officially stands for the entire group. They do not need special expertise—just fairness, independence, and a backing legal team.
Prima Facie Case: A case on its face: enough averments and evidence to raise a serious question, without yet proving the claim.
Real Prospects of Success: Prospects that are genuine (not fanciful), though not more likely than not to prevail.
Dominus Litis: A person controlling the litigation. Under Scots law, they can be liable for expenses awards if the formal party cannot pay.
Reclaiming Motion: An appeal in the Court of Session against an interlocutor. Each interlocutor must be separately challenged.

Conclusion

Milligan v Jaguar Land Rover Automotive Plc and others [2025] CSIH 16 cements two pivotal principles in Scottish group litigation:

Decisions on appointing a representative party and granting permission for group proceedings are exercises of broad discretionary case management, subject only to review for misdirection in law or irrationality.
Both authorisation and permission stages require only low-threshold showings—suitability for the former, and a prima facie case with real prospects of success for the latter—ensuring access to collective redress remains practicable.

By underscoring these principles, the decision advances the 2018 Act’s objectives of efficiency, fairness, and proportionality in multi-party litigation and offers litigants and practitioners clear guidance on navigating Scotland’s group-proceedings framework.