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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 16
GP1/23
OPINION OF LORD ERICHT
on the defenders' motion for leave to reclaim
in the
APPLICATION TO BE A REPRESENTATIVE PARTY IN GROUP PROCEEDINGS
by
LEE BRIDGEHOUSE
Applicant
against
(FIRST) BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT
(SECOND) BMW M GMBH GESELLSCHAFT FUR INDIVIDUELLE AUTOMOBILE
(THIRD) BMW (UK) LIMITED
(FOURTH) BMW FINANCIAL SERVICES (GB) LIMITED
(FIFTH) ALPHABET GB LIMITED
Defenders
Applicant: Milligan KC, Black; Pogust Goodhead
Defenders: Lord Davidson of Glen Clova, Boffey; BTO Solicitors LLP
8 February 2024
[1]
On 18 January I authorised Lee Bridgehouse to be the representative party in group
proceedings (Bridgehouse v Bayerishe Moteren Werke Aktiengesellschaft [2024] CSOH 2). Today
I refused the defenders' motion for leave to reclaim (appeal) against that authorisation and
2
gave an ex tempore oral opinion. Group proceedings are in their infancy and relatively
undeveloped, so it may be useful for that decision to be made more publicly available.
I now issue that ex tempore opinion in writing.
[2]
This is a motion by the first, third, fourth and fifth defenders for leave to appeal my
interlocutor of 18 January 2024 in the application by Lee Bridgehouse to be a representative
party GP1-23.
[3]
The defenders submitted that the court was bound to consider the interests of both
parties, and in the exercise of its discretion say where the balance lay (Stewart v Kennedy 1888
16 R 521 at 522). The central considerations were convenience and expedition in the course
of justice and if evenly balanced the proper course was to incline in favour of leave (Duke of
Portland v Wood's Trustees 1926 SC 640 at 653-654). The present case strongly favoured
granting leave. The appointment as representative party was a milestone and could not be
meaningfully reviewed at a later stage. There are no delays in the Inner House hearing
cases. There was no merit in the applicant's opposition, which was a response to the appeal
rather than to leave. The proposed reclaiming motion was an important opportunity for the
Inner House to provide authoritative guidance. The reclaiming motion could be dealt with
quickly by the Inner House.
[4]
The applicant submitted that the object of leave to appeal was to prevent appeals
which were not worth the appeal and avoid inconvenience, expense and delay (Edinburgh
Northern Tramways Co v G.V. Mann and Another1891 18 R 1140 at 1153). The court must
consider the interests of the parties (Stewart v Kennedy 1888 at 522; Caddies v Harold
Houldsworth & Co (Wakehead) Ltd 1954 SLT (Notes) 3). Delay and lack of prejudice were
relevant factors (Adelphi Hotel (Glasgow) Limited v Walker 1960 SC 182 at 185). The decision
had no material bearing on the substantive issues. The defenders had no interest and there
3
was no prejudice to them. The true purpose was delay. There was no proper basis on which
the interlocutor could be reviewed.
[5]
As is explained in para [10] of Practice Note 2 of 2020 Group Proceedings under Chapter
26A, the procedural framework for group proceedings is based on the commercial actions
model. As in commercial actions, the ability of a party to reclaim is restricted so that in most
(but not all) situations leave is required. As the Inner House said in Highlands and Islands
"And speaking more generally, given the potential for delay, when commercial
procedure is designed for a speedy resolution of business disputes, the court expects
leave to be granted in respect of an interlocutory matter only when such delay is
outweighed by compensating benefits which further the just and effective disposal of
the case at hand."
That sentence is of general application and is not limited to interim interdicts.
[6]
The defenders' position is that the appeal represents an issue of general importance
which has received little reported judicial scrutiny and the proposed reclaiming motion
would present an opportunity for the Inner House to lay down authoritative guidance of the
development of Scots law overall.
[7]
In my opinion the benefit of obtaining Inner House guidance does not further the
just and effective disposal of the case in hand. While the Inner House nowadays deals with
reclaiming motions more quickly than may have been the case in the past, there would still
be some delay. The interests of both parties are in the expeditious resolution of the
substantive issues between them. The replacement of Mr Bridgehouse by another
representative party does not advance resolution of these issues. As the Canadian quotation
in para [16] of the opinion (Sondhi v Deloitte Management Service LP 2018 ONSC 271 at
para [43] quoted in Bridgehouse v Bayerishe Moteren Werke Aktiengesellschaft [2024] CSOH 2
para [16]) demonstrates, defenders in a class action or group proceedings do not have a
4
strong interest in ensuring that class members are adequately represented. If the authorising
of the class representative was such a significant milestone as to necessitate the possibility of
review, the rules could have provided that no leave was required. Having balanced the
interests of both parties, in my view in the exercise of my discretion the balance lies against
allowing leave to reclaim.
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