Statutory Group Procedure Supersedes Common-Law Restrictions on Joint & Several Pleadings: Commentary on Paul Bell v Volvo Car Corporation & Others [2025] CSOH 64

1. Introduction

Paul Bell sought (i) authorisation to act as representative party and (ii) permission to raise opt-in group proceedings on behalf of thousands of Scottish owners or lessees of Euro 5/Euro 6 Volvo diesel vehicles alleged to contain unlawful “defeat devices”. The four respondents comprised the Volvo manufacturing entity, its UK distributor, and two finance companies (Lex Autolease & Santander Consumer UK). The defenders resisted both applications, primarily challenging:

• Bell’s suitability (skills, independence and—critically—financial backing);
• Whether the proposed claims possessed sufficient merit, commonality and prospects of success; and
• The competency of pleading joint-and-several liability against heterogeneous defenders.

Lord Sandison’s Opinion, delivered after the influential Inner-House decisions in Mackay v Nissan and Milligan v Jaguar Land Rover, consolidates the approach to the initial “gateway” tests under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the 2018 Act”) and Chapter 26A of the Rules of Court (“RCS”). Importantly, the Opinion clarifies that once section 20 statutory thresholds are met, common-law pleading restrictions (e.g., Treadwell’s Drifters) no longer bar a single conclusion for joint and several liability in group actions.

2. Summary of the Judgment

Lord Sandison:

• Authorised Paul Bell as representative party—holding the “low bar” for suitability met and funding arrangements with Quantum Claims adequate at this stage.
• Granted permission for group proceedings—finding statutory criteria satisfied: (a) sufficient commonality, (b) reasonable notification efforts, (c) prima facie case and real (non-speculative) prospects, and (d) superiority of the group mechanism over thousands of individual actions.
• Explicitly ruled that section 20 of the 2018 Act “innovates upon and supersedes” common-law impediments to suing multiple defenders jointly and severally on distinct legal bases within the same group action.

3. Analysis

3.1 Precedents Cited and Their Influence

• Mackay v Nissan Motor Co Ltd [2025] CSIH 14 & Milligan v Jaguar Land Rover [2025] CSIH 16
  Inner-House guidance that the overriding objective is access to justice; the tests for authorisation and permission set only a “low bar”; detailed merits or funding scrutiny is reserved for later stages.
• Bridgehouse v BMW [2024] CSOH 2 and earlier Outer-House diesel judgments
  Cited for taking a “benign view” of suitability when public-interest access to justice considerations dominate.
• Common-law authorities – Liquidators of the Western Bank v Douglas (1860), Treadwell’s Drifters Inc v RCL Ltd (1996), SDG Tulloch Homes (2016)
  Traditionally bar concluding against multiple defenders jointly and severally on dissimilar grounds. Lord Sandison holds these are overtaken by the statutory group-procedure framework.
• Wightman v Advocate General [2018] CSIH 18
  Adopted for interpretation of “real prospects of success” (genuine not fanciful).
• Foreign guidance – Alberta decision (Sullivan), Ontario decision (Azar), UK Competition Appeal Tribunal in Riefa v Apple
  Cited by opponents on representative-party competence, but Lord Sandison treats them as of “limited value” relative to Scottish statutory context.

3.2 The Court’s Legal Reasoning

1. Statutory Gateway Tests Are Discretionary & Purpose-Driven
   Section 20(6) of the 2018 Act and RCS 26A confer wide discretion. The court must apply them “pragmatically and realistically”, resisting technical obstacles inconsistent with the Legislature’s access-to-justice objective.
2. Suitability of Representative Party
   • All RCS 26A.7(2) factors considered holistically; none is an absolute bar.
   • Absence of special expertise not fatal where counsel/solicitors provide experience.
   • Quantum Claims’ indemnity—accepted, following Mackay/Milligan, as sufficient demonstration of financial capacity; objections about contingent liabilities can be revisited via caution motions later.
   • Independence concerns: clarified that funder cannot dictate routine conduct; satisfies Milligan control criterion.
3. Commonality
   The alleged presence of defeat devices and resultant economic loss forms an overarching factual nexus; differences between manufacturer and finance-company liability are outweighed by the shared core issues.
4. Prima Facie Case & Real Prospects
   • “Serious question to be tried” standard.
   • The court deliberately avoids deep relevancy or evidence analysis at permission stage; those belong to later debates/proofs.
   • Volvo’s own 2016 evidence to the European Parliament, acknowledging “thermo windows” and Article 5(2) derogations, is enough to show a non-speculative basis.
5. Superiority of Group Procedure
   Given the “many thousands” of claimants, individual litigation is “unthinkable”; group procedure plainly the efficient vehicle.
6. Statutory Supremacy over Common Law
   Lord Sandison holds section 20 “innovates upon and supersedes” common-law impediments. Thus, pleading joint and several liability against heterogeneous defenders in a single group action is competent when common factual matrices exist—an important doctrinal clarification.

3.3 Impact of the Judgment

• Practical – Confirms Outer House will rarely deny authorisation/permission in diesel emissions or similar mass-harm claims, provided minimal compliance with statutory tests.
• Doctrinal – Establishes that statutory group-procedure provisions override traditional Scottish pleading constraints on multi-defender liability. Future defenders cannot use Treadwell’s Drifters-type arguments to block group pleadings at inception.
• Funding – Re-affirms sufficiency of a straightforward litigation-funding undertaking (absent contrary evidence). Courts will not demand in-depth financial disclosure at gateway stage.
• Case-Management Perspective – Encourages early grant of permission, deferring complex jurisdictional, specification and causation queries to targeted debates or proofs and utilising robust case-management powers later.

4. Complex Concepts Simplified

• Group Proceedings – Scottish analogue of “class actions”. A single action is raised by one representative for many similarly affected persons.
• Representative Party – The individual (or body) authorised to conduct litigation on behalf of all group members, owing fiduciary-like duties to them.
• Defeat Device – Software or hardware that alters a vehicle’s emission controls during test conditions to pass regulatory limits but deactivates in normal driving.
• Prima Facie Case – At first sight, the pleadings and materials disclose a legitimate claim that merits full inquiry.
• Real Prospects of Success – A claim is genuine, not fanciful. The court does not weigh probabilities; it merely excludes hopeless cases.
• Opt-In Model – Only claimants who actively choose to join proceed; contrasts with “opt-out” where absent class members are automatically included.
• Thermo Window – A calibration that reduces emission-control activity outside defined temperature ranges. Legality depends on whether it is “necessary” for engine protection (Article 5(2) derogation) or an illicit defeat device.

5. Conclusion

Paul Bell v Volvo & Others cements—at Outer-House level—the liberal, policy-driven approach to Scotland’s nascent group-procedure regime. Three key takeaways emerge:

1. The thresholds for authorising a representative party and granting permission remain deliberately low, reflecting Parliamentary intent to enhance access to justice.
2. Statutory group-procedure provisions override restrictive common-law doctrines; heterogeneous defenders may be sued jointly and severally where claims share a common factual core.
3. Funding and merits scrutiny is incremental; detailed financial assurance or evidential rigor is not demanded at the gateway, but can be revisited via case-management tools.

Consequently, Scottish mass-harm litigation—especially the wave of diesel-emissions cases—will likely progress swiftly past the initial gateway, with substantive battles deferred to later stages. The decision thus materially advances the jurisprudence on group proceedings, signalling a claimant-friendly environment and clarifying the structural interaction between the 2018 Act and traditional Scottish pleading rules.