Summary of Opinion — Judge Haldane (Outer House, Court of Session)

Factual and Procedural Background

This opinion, dated 29 May 2026, concerns an application by the Applicant for (a) permission to bring group proceedings on behalf of 83 other individuals who underwent hernia treatment using mesh products manufactured by Company A, and (b) authorisation for the Applicant to be the representative party for the proposed group. The Respondent objected to both applications under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (sections cited in the summons). The summons contains two conclusions: (i) a declarator that the Respondent was negligent in the design, manufacture and marketing of named mesh products and that those products were not as safe as persons generally are entitled to expect; and (ii) payment of damages to the representative party of the pursuers. The decision was given by Judge Haldane in the Outer House.

Legal Issues Presented

1. Whether permission should be granted to institute group proceedings under the 2018 Act (including whether the statutory criteria such as commonality and efficiency are satisfied).
2. Whether the Applicant should be authorised as the representative party under the 2018 Act and the Rules of Court (including suitability under RCS 26A.7).

Arguments of the Parties

Applicant's Arguments (Attorney Miligan)

• The assessment of suitability for a representative party is holistic and non‑prescriptive; the RCS 26A.7 factors are considerations, not a rigid checklist.
• The prima facie and prospects tests at the permission stage are low: appearance of a serious question to be tried and prospects that are more than fanciful.
• Only competence/financial resources were seriously in dispute; the Applicant is represented by senior counsel and reputable solicitors and has funding from Company B.
• Qualified one‑way costs shifting (Quocs) applies to personal injury claims, reducing the risk of adverse costs awards.
• Common issues exist across the proposed group (all involved mesh manufactured by the Respondent; common questions about complications, dose of mesh and comparative assessment of products), and group procedure is a more efficient administration of justice than many individual Sheriff Court actions.

Respondent's Arguments (Attorney Smart)

• Fundamental lack of commonality across the proposed group: different mesh products (mono‑filament, multi‑filament) used in different anatomical locations and for different hernia types make the group heterogeneous.
• Expert evidence (Dr Wright) indicates an effectively infinite combination of mesh choices by surgeons depending on location/type of hernia, making read‑across and grouping problematic.
• Prescription/limitation issues (e.g. Applicant's surgery in 2013) raise different limitation positions among group members and undermine suitability and commonality.
• Concerns about the selection process, funding sufficiency (Company B's accounts), and lack of specificity in the summons and expert report as to the asserted defect.
• Practical and case‑management difficulties argue against group procedure; if permission were granted, interlocutory orders and definitions would require tightening before proceedings commence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out the statutory framework: section 20(6) of the 2018 Act (requirements for permission) and RCS Chapter 26A (permission criteria and representative party suitability under RCS 26A.7). Applying the appellate guidance in Mackay and Milligan, the court emphasised a pragmatic, flexible and non‑technical approach at the preliminary permission stage.

On the appointment of the representative party, the court assessed suitability holistically against RCS 26A.7(2). The Applicant was represented by experienced counsel and solicitors, had no evident conflict of interest, and had no connection with the Respondent. The court acknowledged concerns raised about prescription and that the Applicant had a different mesh product to some group members, but held those issues did not fundamentally undermine suitability at this stage. The court therefore authorised the Applicant as representative party.

On permission to bring group proceedings, the court focused on the statutory commonality requirement: whether claims raise issues that are the same as, or similar or related to, each other. The court found that, despite heterogeneity in products and implantation sites, the overarching issues were similar/related (allegations that the Respondent manufactured or promoted the products negligently or that the products were not as safe as persons generally are entitled to expect). The court treated prescription, potential need to subgroup cases, and case‑management challenges as matters for later stages, not as decisive at permission. The court also accepted that group procedure would be a more efficient administration of justice than numerous individual Sheriff Court actions. For those reasons, the court granted permission, while directing that the matter be put out By Order to refine the orders sought and address lodging of defences and initial timetabling.

Holding and Implications

Holding: The court granted both (a) authorisation for the Applicant to act as representative party and (b) permission to bring the proposed group proceedings.

Implications: The direct effect is that the proposed group proceedings may proceed with the Applicant as representative party. The court recognised significant case‑management and limitation challenges that will require detailed management and ordered the matter put out By Order to focus on the precise interlocutory orders and timetable required. The opinion applied existing appellate guidance and did not purport to establish a novel legal principle beyond that established in the cited authorities.