Welcome to the weird and wonderful word of mass litigation! I hope this serves as a handy how-to get started of our newest Court of Session Procedure; Group Proceedings, from the firm that raised the very first one.
Your procedural stages for kicking it off are as follows:
1. Instructing Counsel
You will need to know who your proposed representative party is to do this as the representative party is named in the summons and applications.
You would instruct counsel to prepare the following:
- Summons (and any spec as usual)
- The form 26A.9 application for permission to bring group proceedings
- The form 26A.5 application for permission to be the representative party
2. Post-Counsel preparatory
Once you have these papers back from counsel, the only document you have to prepare is the Form 26A.15 group register. The Chapter 26A rules require the following headings in the group register; client name, client address, client DOB, and the name of the firm acting for that client. You do not need to sign the summons as usual as signet happens at a later procedural stage.
3. “First service” (all 4 documents)
(Assuming they’re accepting service electronically!) you would send your 4 documents to the defenders. The rules also call for “all relevant docs” at this point. You’re held to have “raised” from the date of “first service” and the clock stops ticking in respect of timebar.
After this first service/intimation takes place, you enrol the same 4 documents + proof of service same day. You have 14 days to lodge proof of service but makes sense to do it all at the same time if e-service.
The two applications in themselves are motions, so there is no need to do an e-motion in form 23.1C or paper motion before calling 23.2. If you want anything else outwith what you’re asking for in the applications, this would be in form 23.1C.
The enrolled papers are then put before a Lord Ordinary to deal with. There is no hearing required at this point unless it is requested. The Lord Ordinary considers advertisement at this time too, and will make any order as they see fit in the interlocutor to follow.
4. “Second service” (the 2 applications + interlocutors)
After reviewing the papers, the LO will issue an interlocutor granting warrant for intimation and service for the two applications, together with a copy of said interlocutors on the defenders. You’ll receive two interlocutors which is one interlocutor for each application saying the same thing, and both these need to go with the two forms when serving.
You are then required to lodge proof of service within 14 days of it taking place, and the defenders have 21 days from “second service” to lodge answers. Following the lodging of answers a preliminary hearing is set. At the preliminary hearing a timetable is issued.
5. “Third service” (the signeted summons)
A hearing on the applications and answers takes place which is called the permission stage. If permission is granted for both applications, you’re ordered by the court to serve the summons on the defenders.
There you have it – you’ve now commenced Group Proceedings. Couple things to watch; the LO can refuse the applications if criteria set out is not met i.e. haven’t shown we have a prima facie case, we haven’t demonstrated GP are more efficient procedure for this case type or we have not demonstrated proceedings have prospects. If permission granted the LO will make an order with the 26A.12(1) list as set out in the interlocutor. It is at this point you must get the summons signeted prior to service. After it’s returned by the defender the summons is returned for calling as normal. You may be ordered by the court at this time to advertise that permission has been granted.
Blog by Catherine McGarrell, Solicitor
