Group Proceedings for Hernia Mesh Claims: “Similar or Related” Commonality and a Holistic Suitability Test at Permission Stage

1. Introduction

In Stuart McKenzie v Covidien LP [2026] CSOH 48 (Outer House, Court of Session), Lady Haldane determined (i) an application for authorisation of a proposed representative party, and (ii) an application for permission to bring Scottish group proceedings under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.

The applicant sought to act as representative party for (at the time) 83 other individuals who underwent hernia repair using various mesh products manufactured by the respondent. The pleadings sought: (1) declarator of negligence in the design/manufacture/marketing and declarator that the products were “not as safe as persons generally are entitled to expect”, and (2) payment of damages (as framed) to the representative party.

The respondent opposed both the appointment and permission. Its central theme was lack of commonality: different mesh products, different hernia types and implantation sites, and patient-specific (including “idiopathic”) causation issues. It also raised prescription/time-bar complications and concerns about funding.

2. Summary of the Judgment

  • Representative party authorised: the applicant was held suitable under RCS 26A.7 despite product differences and time-bar arguments.
  • Permission granted: the claims were held to raise issues “the same as, or similar or related to, each other” under section 20(6)(a) of the 2018 Act, and group procedure was a more efficient administration of justice than multiple individual actions.
  • Case management next steps: the case was put out By Order to refine the orders sought (including group definition) and address timetable/defences.

3. Legal Framework Applied

3.1 Permission stage

Lady Haldane applied section 20(6) of the 2018 Act, particularly: (a) commonality (“same as, or similar or related” issues), (b) reasonable efforts to identify/notify potential members, and (c) compliance with procedural rules.

She also applied RCS Chapter 26A, especially RCS 26A.11(5), which permits refusal if: commonality/notification criteria are not met; no prima facie case; group procedure is not more efficient; or no real prospects of success.

3.2 Representative party

Suitability was assessed under RCS 26A.7 and the (non-exhaustive) factors in RCS 26A.7(2), including competence, absence of conflict, independence, and resources (with no requirement to disclose funding details).

4. Analysis

4.1 Precedents cited and their influence

Mackay v Nissan Motor Co Ltd 2025 CSIH 14

This Inner House authority provided the controlling approach. Lady Haldane extracted and applied several propositions:

  • Discretionary case-management character: permission/authorisation decisions are discretionary and should not be over-technical (Mackay, cited at paras [6]–[7]).
  • Policy-driven interpretation: the 2018 Act aims to increase access to justice through flexible, streamlined, cost-efficient group procedure (para [6]).
  • Low thresholds at the outset: “prima facie case” means a serious question to be tried; “real prospects” excludes only speculative/fanciful claims, leaving substantive disputes for later (para [7]).
  • Holistic suitability: RCS 26A.7(2) factors are considerations, not a checklist; suitability is assessed “in the round” (para [8]).

Milligan v Jaguar Land Rover Automotive plc 2025 CSIH 16

Although not elaborated at length, it was treated alongside Mackay as authoritative Inner House guidance on the application of the statutory and rules-based tests to Scottish group proceedings (para [6]).

Donnelly v Johnson and Johnson Medical Ltd [2025] CSOH 77

The case appeared in submissions in two ways: the applicant relied on it as an example of the court accepting representative-party suitability in similar litigation (para [11]); the respondent cited it as an example where permission had been refused due to inadequate articulation of a coherent common case (para [22]). Lady Haldane did not treat Donnelly as setting a higher threshold than Mackay; instead, she treated disputes about specification/relevancy as matters to be managed later (paras [26]–[28]).

4.2 Legal reasoning

4.2.1 Representative party: product variation and prescription issues were not disqualifying

The respondent argued the proposed representative had a different mesh type implanted than some group members and faced a 10-year statutory limitation issue, potentially creating misalignment of interests (paras [13]–[14]).

Lady Haldane rejected a rigid approach. Applying Mackay’s holistic model, she held:

  • Competence/safeguards: representation by responsible counsel/solicitors materially supports suitability (para [16]).
  • Funding concerns reduced in personal injury context: the respondent did not dispute that qualified one-way cost shifting (QUOCS) applied, reducing exposure to adverse expenses (para [16]).
  • Time-bar/prescription: acknowledged as an issue to be addressed, but “not directly relevant” to suitability (para [16]).
  • Different products within the group: may generate later case-management questions (including possible sub-grouping) but did not “fundamentally undermine” suitability (para [16]).

On that basis, the applicant was authorised as representative party (para [16]).

4.2.2 Permission: “similar or related” issues can exist despite heterogeneity in medical device implantation

The respondent’s core submission was that hernia mesh litigation lacks the kind of homogeneity seen in pelvic mesh or hip implant cases: different mesh compositions, different implantation locations, and individual physiological variation (paras [20]–[22]). It also argued the summons and expert material did not provide a consistent, comprehensible articulation of defect/duty breach applicable across the group (para [22]).

Lady Haldane’s reasoning proceeded in two steps:

  1. Do not import extra-statutory “same body part” requirements: the statutory test does not require commonality to be tied to one anatomical site, and it would be wrong to treat medical device claims as presumptively unsuitable unless Parliament had said so (para [25]).
  2. Permission stage is preliminary; case-management difficulties are not permission killers: issues about sub-grouping, prescription/limitation, and refining orders/group definition were acknowledged as real, but for “further down the line” (paras [26], [29]).

On commonality, Lady Haldane accepted the issues were not identical, but held they were “similar, or related” because the overarching questions were: whether the respondent negligently manufactured/promoted the products and/or whether the products were not as safe as persons generally were entitled to expect (paras [27]–[28]). She treated that as a serious issue capable of trial; “prospects” were “more than fanciful” (para [27]).

On efficiency, she found it plainly preferable to manage 80+ product liability claims in group procedure rather than individual Sheriff Court actions, reducing duplication and risk of inconsistent outcomes (para [28]).

4.3 Impact

  • Medical device group proceedings remain viable in Scotland: the decision signals that courts should not treat patient heterogeneity or variable implantation sites as inherently defeating section 20(6)(a) commonality.
  • Permission remains a “low bar” gatekeeping exercise: detailed disputes about relevancy/specification, “read across” between products, and individual causation/prescription are channelled into later procedure and case management.
  • Representative party challenges must show a real impediment: differences in product exposure or limitation position, without more, may not prevent authorisation where professional representation and structural safeguards exist.
  • Practical consequence: defenders opposing permission may need to show not merely complexity or heterogeneity, but a concrete failure to meet the statutory/rules tests at the permission stage (e.g., no coherent shared issues at all, or claims that are truly speculative).

5. Complex Concepts Simplified

  • Group proceedings: a Court of Session procedure allowing multiple similar/related claims to be managed together, typically with shared steps (common evidence/issues) and individual issues dealt with as needed.
  • Commonality (“same, similar or related” issues): claims need not be identical; it is enough that they share overarching factual/legal questions that can be addressed together.
  • Representative party: the person authorised to conduct the litigation on behalf of group members; the court must be satisfied they will act fairly and adequately.
  • Prima facie case: at this stage, this means there is a serious question worth trying, not that the case is proved or even fully pled to final standards.
  • Real prospects of success: the claim must be genuinely arguable, not merely fanciful; contested merits are generally left for later.
  • QUOCS (qualified one-way cost shifting): a regime common in personal injury litigation limiting when an unsuccessful pursuer must pay the defender’s expenses, reducing the financial barrier to litigation.
  • Prescription/time-bar: rules limiting how long after an event a claim may be brought; often fact-sensitive and potentially different across claimants.
  • “By Order” hearing: a procedural hearing where the court gives directions and resolves practical steps (e.g., refining orders, timetable for defences).

6. Conclusion

[2026] CSOH 48 reinforces that Scottish group proceedings are intended to be flexible and access-to-justice enhancing. At the permission stage, the court will not impose medical-device-specific hurdles (such as a requirement that all implants concern the same body part), and will not allow anticipated complexity—product variety, potential sub-groups, or individual limitation disputes—to eclipse the statutory test. Suitability of a representative party is assessed holistically, with professional representation and reduced expenses risk (via QUOCS) weighing strongly in favour of authorisation.