Reclaiming Motion by Joseph Mackay against Nissan Motor Co Ltd and others (Court of Session)

Factual and Procedural Background

The Applicant applied for permission to bring group proceedings concerning allegations that various companies within the Nissan and Renault groups fitted prohibited defeat devices to diesel vehicles, affecting nitrogen oxide emissions during regulatory testing. The Applicant also sought to be authorised as the representative party on behalf of approximately 8,500 persons claiming loss due to this alleged conduct. The first to fifth Defenders (Nissan group companies) opposed the applications, challenging the suitability of the Applicant as representative party and the appropriateness of the group proceedings. The sixth to tenth Defenders (Renault group companies) did not reclaim but made brief submissions. Both applications were heard by the Lord Ordinary, who granted authorisation for the Applicant to be representative party and permission to bring group proceedings. The first to fifth Defenders reclaimed against these decisions, leading to the present appeal before the Inner House.

Legal Issues Presented

1. Whether the Applicant is a suitable person to be appointed as the representative party under the criteria set out in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 and associated Rules of Court.
2. Whether permission to bring group proceedings should have been granted, considering the statutory requirements including commonality of issues, existence of a prima facie case, real prospects of success, and whether group proceedings represent a more efficient administration of justice than individual claims.
3. Whether the reclaiming motion challenging the appointment of the representative party is competent, given procedural distinctions between applications for appointment and permission to bring group proceedings.

Arguments of the Parties

First to Fifth Defenders' Arguments

• The Applicant failed to demonstrate suitability as representative party, lacking special abilities, relevant expertise, or adequate demonstration of competence and fairness to the group.
• The group proceedings should not have been permitted because the claims did not raise issues that were sufficiently the same, similar, or related; Nissan and Renault were distinct entities with differing emissions control systems and vehicles.
• The pleadings did not disclose a prima facie case and were deficient in specification and relevancy; many claims were time-barred.
• The group register was flawed, containing numerous duplications, undermining efficient administration of justice.
• Concerns about cross-disclosure of commercially sensitive information between competing companies were not adequately addressed, affecting the efficiency and fairness of group proceedings.
• The challenge to the appointment of the representative party was competent and should be upheld.

Sixth to Tenth Defenders' Arguments

• The sole test for appointment of representative party is suitability, assessed by factors in the Rules of Court.
• Concerns about disclosure of commercially sensitive material between competitors were relevant to the Lord Ordinary’s discretion and efficient administration of justice.
• The statutory criteria for permission under the 2018 Act had not been met due to differences in calibration and homologation of engines between Nissan and Renault.

Applicant's Arguments

• The challenge to the appointment of the representative party was not competent as no reclaiming motion was enrolled against that interlocutor.
• The factors in the Rules of Court are for consideration and do not constitute mandatory requirements; only suitability is required.
• The Applicant, as an ordinary and willing group member, supported by an experienced legal team and funding, is suitable to act as representative party.
• There are protective mechanisms in place to safeguard the group’s interests, including the ability to replace the representative party and requirements for consultation on settlements.
• The funding arrangements, while not fully disclosed, are sufficient to meet any adverse expenses awards.
• The statutory tests for permission to bring group proceedings were satisfied, including commonality of issues, existence of a prima facie case, real prospects of success, and superiority of group proceedings over individual claims.
• Concerns about commercial confidentiality and group register issues are matters for case management and not for resolution at the preliminary stage.
• The preliminary applications should be dealt with expeditiously to promote access to justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasised the discretionary nature of the Lord Ordinary’s decisions regarding both the appointment of the representative party and permission to bring group proceedings. It highlighted that the statutory and procedural framework aims to broaden access to justice by facilitating efficient collective redress and avoiding unnecessary technicality or protracted preliminary procedures.

Regarding the appointment of the representative party, the court noted that the sole statutory criterion is suitability, which must be assessed holistically rather than by rigidly ticking off each factor listed in the Rules of Court. The Lord Ordinary had properly considered the relevant factors, including the Applicant’s independence, lack of conflict of interest, financial backing, and support from an experienced legal team. Although the Applicant lacked special expertise and had not fully demonstrated competence or fairness, nothing suggested unsuitability. The court found the decision to authorise the Applicant reasonable and not open to appellate interference.

On the permission to bring group proceedings, the court accepted that the statutory test requires issues to be the same, similar, or related, not identical. The court found sufficient communality based on the relationship between the Nissan and Renault companies, supported by official materials including a press release and a European Parliament report. The court held that the Applicant demonstrated a prima facie case and real prospects of success, applying established legal standards that require only a stateable case and real (not speculative) prospects. Issues such as commercial confidentiality, time-bar defences, and group register irregularities were deemed inappropriate for detailed consideration at this preliminary stage and were matters for case management.

The court also addressed the procedural competency of the reclaiming motion challenging the appointment of the representative party. It concluded that the two applications—for appointment and for permission—are separate proceedings with distinct case numbers. As no reclaiming motion was enrolled against the appointment interlocutor, the challenge was not competent and would not be entertained.

Overall, the court endorsed a pragmatic, flexible, and expeditious approach to preliminary applications in group proceedings, consistent with the policy aims of the 2018 Act to enhance access to justice and promote efficient collective litigation.

Holding and Implications

The court REFUSED the reclaiming motion challenging the Lord Ordinary’s decisions to authorise the Applicant as representative party and to grant permission to bring group proceedings. Furthermore, the court formally declined to entertain the challenge to the appointment of the representative party on procedural grounds.

The direct effect is that the group proceedings may continue with the authorised representative party and with the granted permission. No new precedent was set beyond the guidance provided regarding the interpretation of suitability and permission criteria and the procedural competency of challenges at the preliminary stage. The decision reinforces the importance of a flexible and pragmatic approach to group proceedings to promote access to justice and efficient case management in complex multi-party litigation.