Introduction

The case of Steven Blair Milligan against Jaguar Land Rover Automotive Plc and co-defendants, adjudicated by the Scottish Court of Session on October 29, 2024, marks a pivotal moment in the development of group proceedings within Scottish jurisprudence. With Mr. Milligan seeking to represent a group of approximately 6,500 individuals alleging violations related to vehicle nitrogen oxide ("NOx") emissions by Jaguar Land Rover vehicles, the case delves into the procedural intricacies and substantive criteria governing group lawsuits. Central to the dispute were issues concerning the appointment of a suitable representative party, the triggering of caveats, and the grant of permission to initiate group proceedings under the nascent framework outlined in Rule 26A of the Court of Session Rules.

Summary of the Judgment

Lord Ericht, presiding over the case, addressed multiple procedural and substantive matters before delving into the core applications for Mr. Milligan to be appointed as the representative party and to obtain permission for group proceedings. Key determinations included:

• Caveats: The court clarified that standard applications for granting permission to bring group proceedings under Rule 26A.9 do not trigger caveats lodged under Rule 5.1(f), as these orders are not ex parte and involve notifying defenders.
• Substitution of Applicant: Initially, Ms. Lisa Rutherford sought to be the representative party but was found unsuitable due to conflicts of interest and a protected trust deed. Consequently, Mr. Milligan was substituted as the applicant.
• Appointment of Representative Party: The court assessed Mr. Milligan's suitability based on Rule 26A.7 criteria, finding him independent, competent, and financially capable, thereby authorizing his appointment.
• Permission to Bring Group Proceedings: The court granted permission, finding that the claims raised similar legal and factual issues, there was a prima facie case, it aligned with efficient administration of justice, and there were real prospects of success.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to establish a framework for evaluating group proceedings:

• Bridgehouse v BMW AG [2024] SLT 116: This case informed the court’s application of Rule 26A.7, particularly regarding the financial standing and indemnity assurances necessary for a representative party.
• Cairns v McGregor [1931] SC 84 and others such as Hollick v Toronto (City) [2001] 3 SCR 158: These cases elucidated the doctrine of dominus litis, guiding the court in distinguishing between mere interest and actual control over litigation, thereby safeguarding against conflicts of interest.
• Thompsons Solicitors Scotland v James Findlay (Kenya) Limited [2022] SLT 731, Sondhi v Deloitte Management Services LP [2018] ONSC 271, and Western Canadian Shopping Centres Inc v Dutton [2001] 2 SCR 534: These were instrumental in shaping the court’s stance on the independence and suitability of a representative party.

Legal Reasoning

The court meticulously applied the criteria outlined in Rule 26A.7 to determine the suitability of Mr. Milligan as the representative party. Key aspects of the legal reasoning included:

• Independence: The court affirmed that Mr. Milligan's independence from the defenders was imperative, ensuring that his actions would reflect the collective interests of the group rather than any individual defendant.
• Competence and Resources: Evaluating the financial robustness provided by Quantum Claims and the undertaking to indemnify, the court concluded that Mr. Milligan possessed the necessary resources to manage potential expenses awards.
• Prima Facie Case: The court determined that the allegations concerning illegal defeat devices in NOx emissions were sufficiently substantiated to warrant the initiation of group proceedings.
• Efficient Administration of Justice: By permitting group proceedings, the court aligned with the objective of reducing judicial redundancy and enhancing efficiency in handling multiple similar claims.

Notably, the court dismissed the necessity of triggering caveats under Rule 5.1(f) for standard applications under Rule 26A.9, reinforcing that such orders involve requisite notifications to defenders, thereby negating the ex parte nature that caveats aim to protect against.

Impact

This judgment significantly influences the landscape of group proceedings in Scotland by:

• Clarifying Procedural Norms: Establishing that standard group proceeding applications do not activate caveats under Rule 5.1(f), thus streamlining the process for initiating group actions.
• Defining Representative Suitability: Reinforcing the stringent criteria under Rule 26A.7 for appointing a representative party, ensuring that such individuals are independent, competent, and financially capable.
• Encouraging Efficient Litigation: Validating the use of group proceedings for handling large-scale claims, thereby promoting judicial efficiency and reducing burdens on the court system.
• Setting Precedent for Future Cases: Providing a detailed framework that lower courts and future litigants can reference when navigating the complexities of group proceedings.

Complex Concepts Simplified

Caveats in Scottish Court Procedure

A caveat is a protective measure allowing an individual to prevent the court from making certain orders without their knowledge. Under Rule 5.1(f), a caveat can be lodged against orders permitting group proceedings. However, as clarified in this judgment, standard applications for such orders do not trigger these caveats because they involve notification and opportunity to oppose, thus negating the need for caveat protection.

Group Proceedings and Representative Party

Group proceedings allow a collective of individuals with similar claims against a defendant to consolidate their cases into a single legal action. The representative party is the individual authorized to act on behalf of the entire group, making crucial decisions, coordinating legal strategies, and ensuring fair representation. The suitability of this representative is governed by strict criteria to avoid conflicts of interest and ensure impartiality.

Rule 26A.7 Criteria

Rule 26A.7 outlines the conditions that must be met for an applicant to be deemed a suitable representative party in group proceedings. Key criteria include:

• Possession of special abilities and relevant expertise.
• Absence of conflicting interests and confirmation of independence from the defenders.
• Proof of adequate financial resources to handle potential expenses awards.
• Demonstrated competence to manage and litigate the claims effectively.

Conclusion