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Will this change in the law in Scotland empower consumers?

Consumer law

If a business breached your consumer rights would you want Which? to fight for you and others affected in court? We welcome Liam McArthur, Scottish Liberal Democrat Member of the Scottish Parliament for Orkney, as our guest to explain more…

In 2003, JJB Sports was fined over £8.37m by the Office for Fair Trading for fixing the price of replica football shirts and unlawfully overcharging customers. Although a reduced fine of £6.7m was paid, the money went to the UK government and not back to consumers.

But in 2007, using new legal powers and following an out of court settlement, Which? was able to get money back for many people who’d bought the overpriced replica shirts and joined our campaign.

A similar legal provision is currently being introduced in Scotland and recently I worked with Which? to improve the bill to enable more consumers in Scotland to gain collective redress. 

The Scottish Civil Litigation Bill introduces into Scots law ‘group proceedings’ – a structure which enables a claim to be brought by a representative on behalf of a large number of people have the same, or similar rights in a case – like the football shirts case. I’m pleased that groups of people suffering similar detriment will enjoy greater access to justice. 

Limited justice for consumers?

But there was one problem. The Scottish government wanted people to actively ‘opt-in’ to group proceedings when they are initiated. The JJB case proceeded on an ‘opt-in’ basis, and Which? achieved redress for the hundreds of people who had signed up and negotiated some compensation for thousands of others. But this was a small fraction of the potential two million who suffered loss.

I was worried that opting in would restrict the number of consumers who could take part in and share the benefit of a successful action. Typically, breaches of consumer law have a small impact on a large number of people, so the cumulative impact may be high, but the incentive for any single individual to bring legal action is very low.

Would you go through the bother of opting-in if you had no idea of what the process was, no idea whether you would win, or how much compensation you would get?

So, I tabled an amendment that asked the Scottish Courts to develop an ‘opt-out’ model, alongside an ‘opt-in’ one – and the amendment passed.

That means in Scotland consumer groups like Which? would be able to act on behalf of larger numbers of consumers, except those who had actively opted out, and increase the amount of compensation if a case is won. An example of a potential case could be collective redress for people who suffered a loss with the VW emissions scandal.

An incentive for better business behaviour

This change would also better deter businesses from behaving badly. Lawbreaking businesses often benefit from taking small amounts of money from a lot of people, rather than a lot of money from one person. 

An ‘opt-out’ mechanism should boost the overall level of compensation achieved, and also strengthen the deterrent effect of enforcement. Even where individual consumers lose out by only a few pounds, businesses would know that consumers still have an effective mechanism by which to seek redress.

What’s next?

If the Bill becomes an Act, the Scottish Civil Justice Council will develop detailed proposals and rules detailing how opt-in and opt-out will work. And we shall await successful cases being brought.

Do you agree that this opt-out change represents a good thing for consumers? If you were affected by a consumer issue, would you want Which? to get justice on your behalf?

This is a guest contribution by Liam McArthur MSP. All views are Liam’s own and not necessarily those also shared by Which?.


I think where it is clear consumers have been “cheated” then they should be compensated, as well as the perpetrator being fined. This would not only be fair to consumers but should act as a deterrent to the company concerned.

I see this working in relatively simple cases. However in others, such as VW, I see it as more complicated. Different owners will have different losses, such as greater depreciation than normal (not easy to prove, but dependent on the model and age of the car) and their other costs will differ – for example if you take your car to be modified, the distance you have to travel, time it takes, temporary loss of vehicle. Compensation should relate to actual loss, which will vary substantially. In these situations I think a collective action should establish the guilt or otherwise of the supplier, and the basis on which compensation could then be claimed. The process for an individual making their own claim should then be much easier, depending upon them simply presenting the information necessary.

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I don’t know, duncan. However, if an action demonstrates that a company has broken the law then I would presume the precedent has been set and that anyone can use the case to support their own claim. If the VW case is used as an example I would imagine once a method of determining compensation has been set it would apply to all owners. But, as I said, I don’t know; perhaps Which? Legal can help?