Reclaiming motion by Steven Blair Milligan against Jaguar Land Rover Automotive Plc and others (Court of Session)

Factual and Procedural Background

This opinion concerns a reclaiming motion challenging interlocutors issued by the Lord Ordinary in relation to preliminary applications for group proceedings under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. The Applicant sought authorisation to be appointed as the representative party and permission to bring group proceedings against a group of defendants comprising several Jaguar companies, including vehicle manufacturers and related finance companies. The Lord Ordinary granted both applications, authorising the Applicant as representative party and permitting the group proceedings to proceed. The Defendants opposed both applications and sought to reclaim the Lord Ordinary's decisions.

The group proceedings relate to claims arising from alleged unlawful defeat devices installed in Jaguar Land Rover diesel engines that purportedly caused non-compliance with EU and UK emissions standards, specifically regarding NOx emissions. The group consists of 6,465 members who purchased, owned, or leased affected vehicles. The Applicant is a member of the group and seeks to represent their interests.

The Defendants challenged the suitability of the Applicant as representative party and contended that the group proceedings should not be permitted on the grounds that there was no prima facie case and no real prospect of success. The Lord Ordinary rejected these challenges, granting authorisation and permission. The reclaiming motion targets the interlocutor granting permission to bring group proceedings but does not competently challenge the interlocutor appointing the representative party.

Legal Issues Presented

1. Whether the Lord Ordinary erred in authorising the Applicant as a suitable representative party for the group proceedings.
2. Whether the Lord Ordinary erred in granting permission to bring group proceedings, specifically whether the Applicant demonstrated a prima facie case and real prospects of success.
3. Whether the reclaiming motion challenging the appointment of the representative party is competent without leave to reclaim.

Arguments of the Parties

Defenders' Arguments

• The Applicant failed to demonstrate suitability to be appointed representative party; no supporting evidence or vouching was provided.
• There are inherent conflicts of interest between solicitors, funders, and group members, which the Applicant did not address.
• The Lord Ordinary’s interpretation of the representative party role was incorrect, underestimating the importance and responsibility involved.
• The funder, Quantum Claims, may be financially overextended, raising concerns about the ability to meet adverse expenses awards.
• The Applicant is not the dominus litis and lacks control over the litigation, raising concerns about proper administration of justice.
• The draft summons lacked relevancy and specificity, particularly regarding allegations of fraud and the presence of defeat devices, failing to establish a prima facie case.
• The alleged "copycat" nature of the claims, based on VW Group litigation, lacks evidential basis and specificity.
• The group register contains duplicate claims, raising issues of efficient administration of justice.
• The reclaiming motion challenging the appointment of the representative party is incompetent as no leave to reclaim was sought.

Applicant's Arguments

• The Lord Ordinary correctly applied the statutory criteria, and the suitability test for representative party is a low bar focused on whether the Applicant can prosecute the action efficiently and effectively.
• The Applicant is an ordinary group member, supported by an experienced legal team and funders with a strong financial position and a history of meeting expenses awards.
• The absence of special expertise or mastery by the Applicant is not determinative of unsuitability.
• Concerns about dominus litis are premature and irrelevant at this stage given the funding arrangements.
• The preliminary test for permission to bring group proceedings requires only a prima facie case and real prospects of success, which have been met.
• Issues of specificity, relevancy, and evidential support for allegations, including fraud and defeat devices, are matters for later stages of the litigation.
• The reclaiming motion challenging the appointment of the representative party is incompetent as no reclaiming motion was enrolled against that interlocutor.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mackay v Nissan Motor Co Ltd and others [2025] CSIH 14	Guidance on preliminary applications in group proceedings, including appointment of representative party and permission to bring group proceedings.	The court adopted and applied the approach set out in this case to the current reclaiming motion.
Cairns v McGregor 1931 SC 84	Doctrine of dominus litis, allowing expenses to be awarded against a person controlling litigation though not a party.	The court found the issue premature given the funding undertaking but explained the concept in context of the case.
Marine & Offshore (Scotland) Limited v Hill 2018 SLT 239	Requirement for specificity in pleadings, especially regarding allegations of fraud.	The court noted the draft summons lacked specificity but held this was not determinative at the permission stage.
Wightman v Advocate General 2018 SC 388	Definition of "real prospects of success" as a test for permission.	The court applied this test, concluding the Applicant met the threshold for real prospects of success.
Bridgehouse v Bayerische Motoren Werke AG 2024 SLT 116	Considerations for appointment of representative party in group proceedings.	The Lord Ordinary’s prior opinion in this case was relied upon and affirmed by the court.
Thompsons Solicitors Scotland v James Finlay (Kenya) Ltd 2022 SLT 731	Standards for demonstrating suitability of representative party and conflicts of interest.	The court distinguished this case and held the test for suitability was not as onerous as suggested by the reclaimers.
Forsyth v A F Stoddard & Co Ltd 1985 SLT 51	Test for appellate interference with discretionary decisions.	The court confirmed it would not interfere absent misdirection or unreasonable exercise of discretion.
Thomson v Corporation of Glasgow 1962 SC (HL) 36	Appellate court’s reluctance to overturn discretionary decisions merely because it might have decided differently.	Applied as a principle limiting appellate interference with Lord Ordinary’s discretion.
McTear's Executrix v Imperial Tobacco Ltd 1996 SC 514	Principle that even impecunious litigants are entitled to advance a stateable case.	Referenced to support the position that funding arrangements need not be overly scrutinised at the preliminary stage.
AB and CD, Petrs 1992 SLT 1064	Competency issues and raising objections to reclaiming motions.	The court allowed the Applicant to raise competency despite procedural irregularities.
Riefa v Apple Inc and others [2025] CAT 5	Scrutiny applied to suitability of representative party in group proceedings in other UK jurisdictions.	Distinguished on facts; no similar concerns arose in the present case.
Smyth v British Airways plc and others [2024] EWHC 2173 (KB)	Examination of control and true conduct of litigation behind representative party.	Distinguished; no evidence of third-party control in the present case.

Court's Reasoning and Analysis

The court emphasized that decisions to authorise a representative party and to grant permission for group proceedings are discretionary case-management decisions aimed at the fair administration of justice and the policy objectives of the 2018 Act. Such decisions are not subject to appellate review on the merits unless there is a clear error of law, unreasonable exercise of discretion, or misdirection.

Regarding the appointment of the representative party, the court held that the Lord Ordinary correctly applied the statutory test under Rule of Court 26A.7, which requires a holistic assessment of suitability rather than stringent evidential demonstration. The Applicant, as an ordinary group member supported by an experienced legal team and funder with a strong financial position, met the low threshold for suitability. The court rejected arguments that the Applicant’s lack of special expertise or control (dominus litis) rendered him unsuitable. Concerns about funding adequacy were addressed by the funder's undertaking and financial strength, with the possibility of later caution for expenses if circumstances changed.

On permission to bring group proceedings, the court agreed with the Lord Ordinary that the statutory requirement that the claims raise issues that are the same, similar, or related was satisfied despite variations in vehicle models and ownership. The court accepted that the draft summons established a prima facie case and that issues of specificity, relevancy, and evidential support for fraud allegations were matters for later stages, not the preliminary permission stage. The test for real prospects of success was met, being a low threshold requiring only that the case is genuine rather than speculative.

The court also addressed procedural competency, concluding that the reclaiming motion challenging the appointment of the representative party was incompetent due to the absence of a reclaiming motion against that interlocutor and the rules requiring leave to reclaim. The two applications arose in a single cause but were dealt with by separate interlocutors, and the appeal before the court was properly confined to the interlocutor granting permission to bring group proceedings.

Holding and Implications

The court REFUSED the reclaiming motion challenging the Lord Ordinary’s interlocutor granting permission to bring group proceedings.

The court also refused the reclaimers’ motion seeking dispensation to challenge the appointment of the representative party without a proper reclaiming motion, holding that even if such a motion had been competent, it would have failed on the merits.

The direct effect of this decision is that the group proceedings against the Jaguar companies may proceed with the Applicant as the authorised representative party. No new precedent was established; the court reaffirmed established principles governing group proceedings, discretionary case-management, and appellate review in Scotland.