Group claims in Scotland: two court decisions and what they mean for justice

Since 2020, Scotland has had its own form of “group action”, but it is not the same as the American-style “class action lawsuits” many people picture.

Social commentators and the media often use these terms as a simple way to describe many people suing over the same thing, but it’s less straightforward than that. 

For example, if 100 people suffered food poisoning at a restaurant, they could ask the Court of Session for permission to bring their claims together as one case, with one person acting on behalf of the group. Each person must choose to sign up (an “opt-in” system), and the court must be satisfied that dealing with the claims together is more efficient than 100 separate claims. 

In complex claims, a “test case” might be brought to challenge or clarify a grey area of law, hoping to open the door for other claimants, but that’s another issue entirely.

The benefits are clear. Group actions mean fewer hearings, less paperwork, and the Court can keep everything together in one place. There is strength in numbers for claimants seeking justice. 

Two recent court decisions, both relating to hernia mesh claims, offer useful guidance on how the court is currently considering group claims, and hint at how things could change in the future. 

The case of McKenzie v Covidien LP was decided in May 2026 and involved 84 people who claimed they were harmed by hernia mesh. Lady Haldane allowed the claims to proceed as group proceedings and approved Mr McKenzie as the representative party to bring the claims on behalf of the group.

However, one month later, the Court of Session’s appeal judges confirmed that another earlier proposed group action, Donnelly v Johnson & Johnson Medical Ltd, could not, after all, run as a group action.

The two different outcomes need to be looked at individually to understand how the Scottish courts are applying the rules. 

What happened in Donnelly v Johnson & Johnson Medical Ltd?

This case involved 18 claims brought by 17 people relating to issues with five different hernia mesh products. In August 2025, the judge accepted that the 17 people had real prospects of success and that they shared similar issues. 

But the judge refused to let the 18 claims proceed as a single case for one reason: he was not persuaded it would be any more efficient than dealing with them separately. When the decision was appealed, three appeal judges upheld it in June 2026 and described this test as the “superiority requirement”. 

Importantly, the appeal judges also made clear that a relatively small group does not automatically prevent a group action. In fact, only two people are required. They added that when claims share common issues, handling them together is usually more efficient. 

What happened in McKenzie v Covidien LP ?

In this case, 84 people were affected by different kinds of hernias, and they used different types of mesh products. The key question was whether they shared common, similar, or related issues, and the court concluded they did. These included questions about the general risks of hernia mesh, the amount used, and what the manufacturer knew about possible complications.

Lady Haldane described the legal test as “deliberately flexible and non-prescriptive”. She noted that Parliament had not excluded medical device claims from the group proceedings system and that these common issues could be tested by comparing the products with each other and substantially the same evidence. 

What do the two different outcomes mean for future cases in Scotland?

They show the Scottish courts are taking a flexible approach to group actions, in keeping with the aim of improving access to justice.

When multiple claims are pursued as one, it must be clear what the common issues are and why dealing with them as a group action is more efficient, from the start of the application. 

For companies defending group proceedings, simply pointing out differences between individual claimants may not be enough. Those differences must show why the claims genuinely cannot be dealt with efficiently together.

The decisions do not answer every question about Scotland's developing group proceedings system. Whether Scotland should eventually introduce an opt-out system, and how cases will be managed once underway, remain to be decided.

For now, however, McKenzie and Donnelly provide important guidance on balancing common issues, efficiency, and the need to manage differences between individual claims.

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Paola Sproul, Senior Solicitor