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Court reforms set to make litigation quicker and more efficient in Scotland

The changes to litigation procedure, known as the Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2012, were approved by the Scottish Parliament last month.

Among other things, they make a number of changes specific to IP cases, which are heard before the Court of Session in Edinburgh.

These include that, for the first time, passing-off disputes are included in the definition of IP cases.

An important reform is that there should be a preliminary hearing in an IP case within 14 days of the defences being lodged. In most cases, this means a hearing will take place within about four to six weeks of the action being brought.

The changes also give judges more power to manage cases and make orders to restrict evidence and cross-examination and to seek outside reports or experts, as well as to restrict counter-claims.

"The changes seem designed to make sure that proceedings won't be slowed down by tactical claims," James McGachie of DLA Piper in Edinburgh told Managing IP.

He added that the changes are a response to the reforms to the Patents County Court in England and Wales. These have been well received, and mean straightforward cases can be heard in a day or two, with costs capped.

By contrast, IP cases in Scotland are slow and it can be months before the first hearing takes place.

"There was some concern in Scotland that we would see a dearth of actions and people rushing to the PCC," said McGachie. "These changes should lead to cheaper and more expeditious resolution of disputes. Expert evidence is a lot more front-loaded, and parties are encouraged to get their heads together early on."

The changes broadly bring IP procedures into line with those that apply in commercial cases.

Scotland has a different court system to England and Wales, even though they are both part of the United Kingdom.

UK and European IP rights are valid in both jurisdictions, meaning that parties can often choose whether to bring actions in London or Edinburgh. While England & Wales is the bigger market, Scotland has some advantages, including generally lower costs and proximity for some high-tech businesses. There are three judges who handle IP cases in the Court of Session.

Scotland will hold a referendum on independence from the UK in 2014. If there is a yes vote, that might lead to further changes affecting IP rights.

Irrespective of that, if the EU unified patent court proposals come into force, all member states will have to decide whether to establish local and/or regional divisions. There is speculation that England and Wales and Scotland would share a regional division, which might also cover neighbouring countries such as Ireland.

(Credit: James Nurton)

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