Refining the Efficiency Criterion: Lord Young Clarifies the Threshold for Group Proceedings under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018

Refining the Efficiency Criterion: Lord Young Clarifies the Threshold for Group Proceedings under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018

1. Introduction

In Michelle Donnelly v Johnson & Johnson Medical Ltd ([2025] CSOH 77) the Scottish Court of Session, Outer House, addressed two inter-linked applications:

  1. Appointment of Ms Donnelly as a representative party under s 20(3)(b) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the 2018 Act”).
  2. Permission to raise group proceedings concerning alleged defects in five types of hernia mesh devices manufactured by Johnson & Johnson.

Although Lord Young was content to authorise Ms Donnelly as representative, he ultimately refused permission for the group proceedings. The decision crystallises the court’s emerging approach to the “efficiency” and “commonality” tests found in rule 26A.11(5) of the Rules of the Court of Session. It therefore constitutes a significant procedural precedent for Scottish mass-tort litigation post-2018 Act.

2. Summary of the Judgment

  • Representative Party: The court held that Ms Donnelly was a “suitable person” under rule 26A.7(1). The threshold for suitability remains low; specialist expertise is not a prerequisite.
  • Permission for Group Proceedings: Refused. Lord Young concluded that the applicants had not shown:
    • That “all of the claims” shared sufficiently common issues of fact or law (rule 26A.11(5)(a)); or
    • That litigating as a group would be more efficient than individual actions (rule 26A.11(5)(c)).
  • Key reasons:
    • Only seventeen claimants and five distinct mesh products, each with materially different design features and risk profiles.
    • Pleas of prescription and limitation likely to require individual factual inquiries.
    • Existing case-management tools (lead cases, joint minutes, sisting) could achieve comparable efficiencies without invoking group procedure.
    • The applicants presented no developed “route-map” or refined statement of common issues.

3. Detailed Analysis

3.1 Precedents Cited

The court drew on a growing body of Scottish case-law that interprets the 2018 Act and the associated Chapter 26A rules:

  • Mackay v Nissan Motor Co Ltd [2024] CSOH 68 & 2025 CSIH 14 — established that:
    • The “prima facie case” test at the permission stage is low (“serious question to be tried”).
    • The representative-party application should ordinarily be decided before permission.
  • Milligan v Jaguar Land Rover Automotive plc 2025 CSIH 16 — confirmed that applicants need not produce extensive vouching to prove suitability, and that the court takes a “benign” view when appointing representative parties.
  • Thompsons Solicitors Scotland v James Finlay (Kenya) Ltd 2022 SLT 731 — cautionary comments on representative parties who lack independence or act as “ciphers” for legal teams.
  • Bridgehouse v BMW 2024 SC 270 — emphasised the flexibility of group proceedings but also the need to frame concise group issues.
  • Hastings v Finsbury Orthopaedics Ltd [2022] UKSC 19  / Gilchrist v DePuy International [2023] CSIH 47 — illustrated how product-liability findings may not “read-across” between different medical devices, underscoring the specificity of defect analysis.
  • AB v Ministry of Defence [2012] UKSC 9 — cited to show that limitation/prescription issues can themselves sometimes be “common issues” in group litigation.

These authorities framed Lord Young’s analytic structure and supplied persuasive analogies for considering efficiency, commonality and the court’s existing case-management powers.

3.2 Legal Reasoning

  1. Sequential Approach. Following Mackay and Milligan, Lord Young first assessed the suitability of the representative party, then moved to permission.
  2. Suitability Test (rule 26A.7).
    • Ms Donnelly’s lack of specialist expertise not fatal; the rule does not impose mandatory qualifications.
    • Independence from the defender was undisputed; financial risks mitigated by an indemnity and QOCS regime.
    • Outcome: Threshold easily met.
  3. Permission Tests (rule 26A.11(5)).
    • Prima facie case / real prospects (paras 27): Low hurdle; satisfied.
    • Commonality (rule 26A.11(5)(a)):
      • Applicants relied mainly on the generic fact of hernia mesh implantation.
      • Court noted major design differences among the five products (polypropylene vs. fully resorbable Vicryl, intraperitoneal versus extra-peritoneal deployment, etc.).
      • Defect mechanisms and clinical indications differed; thus, minimal overlapping issues of fact/law.
    • Efficiency (rule 26A.11(5)(c)):
      • Only 17 claimants: administrative economies of scale limited.
      • Prescription/limitation disputes entail individual timelines and knowledge assessments.
      • Existing rules (lead cases, joint minutes, case-management directions under RC 2.2, 22.3(6), 42A) can capture whatever generic evidence does exist.
      • Applicants offered no granular plan defining group issues or procedural phases; risk of inefficiency and wasted cost.
  4. Balancing Exercise. Overall, Lord Young concluded that whatever small amount of common evidence existed did not outweigh the heterogeneity of products and the procedural complexities of limitation. Therefore, granting group status would not advance “efficiency” or judicial economy.

3.3 Anticipated Impact

This decision recalibrates expectations for Scottish group litigation, especially in product-liability contexts involving:

  • Limited numbers of claimants. Courts may view ordinary multi-party management tools as sufficient where claimant cohorts are small (dozens, not thousands).
  • Multiple products or variants. The wider the technological or design divergence, the harder it is to satisfy commonality and efficiency.
  • Fact-specific limitation/prescription issues. High prevalence of such issues can tilt the balance against group procedure.
  • Requirement for a “route-map.” Applicants must articulate, with some particularity, the proposed common issues, procedural phases, and anticipated savings. A mere assertion of generic efficiency will not suffice.

Practitioners will likely prepare more detailed permission applications, segment product groups, or pursue hybrid strategies (lead cases plus sisting) to avoid dismissal.

4. Complex Concepts Simplified

Group Proceedings (Scotland)
A procedural mechanism introduced by the 2018 Act allowing multiple claimants with similar claims to litigate together under a single representative party, akin to “class actions” elsewhere.
Representative Party
An individual or entity authorised by the court to conduct the litigation on behalf of all group members. Must be a “suitable person,” but need not hold legal qualifications.
Commonality Test (s 20(6)(a))
The requirement that all claims share at least one issue of fact or law that is the same, similar, or related. Without it, group proceedings cannot be authorised.
Efficiency Test (rule 26A.11(5)(c))
The applicant must show that litigating as a group will provide a “more efficient administration of justice” than separate actions—considering cost, court time, and procedural convenience.
Prescription vs Limitation
Prescription extinguishes the legal right to sue after a fixed period (10 years for product-liability under s 22A of the Prescription and Limitation (Scotland) Act 1973). Limitation bars the remedy unless the court allows it after a three-year period post-injury or knowledge. Both are highly fact-sensitive.

5. Conclusion

Michelle Donnelly v Johnson & Johnson Medical Ltd is a cautionary tale for would-be group litigants. The decision underscores that:

  1. Appointment as a representative party remains relatively straightforward; courts favour inclusive access.
  2. Permission for group proceedings is rigorously scrutinised against commonality and, crucially, efficiency. The smaller and more heterogeneous the cohort, the more demanding the scrutiny.
  3. Applicants must supply a detailed procedural blueprint and a refined list of group issues to persuade the court that the group route adds value beyond conventional case-management.
  4. The court will not hesitate to refuse group status if traditional tools (lead cases, joint minutes, etc.) can achieve comparable ends.

By refining the “efficiency” criterion, Lord Young has provided valuable guidance for future multi-party product-liability actions in Scotland and has signalled that the 2018 Act is not a carte blanche. Strategic planning and a clear articulation of shared issues will be essential for any successful group-proceedings application going forward.

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