Data protection and Intellectual Property disputes in Scotland: Key considerations for English businesses

As the major data protection and intellectual property statutes apply to the whole of the UK, procedural distinctions between Scottish and English courts and differences in enforcement are perhaps the most important factors to be aware of for businesses with cross-border operations.  For advisers in England, it is worth knowing that proceedings related to IP and data protection north of the border can be conducted significantly faster and cheaper than the equivalent proceedings in England; and in cases aimed at the urgent protection of intellectual property rights, orders can be granted by the Scottish Courts which have UK-wide applicability.  This can provide a very valuable and effective shortcut to protection of IP rights through the Scottish courts.

Key Features of Scottish Court Procedure

‘‘Interim interdict’ is the Scottish equivalent of an interim injunction. It allows businesses to act quickly to stop damaging conduct—whether that is the misuse of confidential information, infringement of intellectual property rights, or the threatened disclosure of sensitive data. To obtain an interim interdict, the applicant must satisfy the court that there is a prima facie (i.e. arguable) case and that the balance of convenience favours the granting of the order. In other words, the court will weigh up whether it is more just to grant the order and prevent the disputed conduct pending a full hearing, or to refuse it and allow the conduct to continue.

Applications for interim interdict can be made on an urgent basis, with the court assessing whether immediate protection is justified. A hearing on interim interdict tends to be heard speedily, often on the same day as the application is made. It commonly relies on ex-parte statements backed up by appropriate evidence of the apprehended wrong. If granted, the interim interdict has the effect of prohibiting the defender (to use the Scots term) from engaging in the specified conduct until the dispute is resolved at a full hearing. This swift and practical remedy can be critical in preventing harm from escalating or worsening – and it can in appropriate cases be enforced throughout the UK.

When it comes to recovering losses, issues may be heard in the Court of Session (Scotland’s higher civil court) or in the lower Sheriff Courts, which have exclusive jurisdiction to deal with claims for less than £100,000. Any decree (judgement) for payment granted by a Scottish Court can, of course, be enforced relatively easily in England and vice versa.

In summary, the Scottish courts can often deal with interim interdict applications at very short notice – sometimes the same day – and at significantly less cost than is possible in England,  allowing businesses to obtain swift and economical protection of their rights.

Disclosure and the Scottish position on document recovery

It is worth noting that the Civil Procedure Rules that apply in England do not apply in Scotland. Accordingly, the rules around disclosure of evidence are completely different north of the border.  Specifically, the CPR rules requiring mandatory disclosure do not apply. Parties are spared the requirement to disclose a lot of information unless either they choose to do so. In relation to non-voluntary disclosure, the Court has powers to order only the production of material for which there is already a basis pled in the Court action – Courts are hugely resistant to the idea of allowing litigants to go on “fishing expeditions”, by which they hope to recover something – anything – of which they were previously unaware and which might prove helpful to them. The process for recovery of evidence in Scotland is known as commission and diligence. This narrower approach to disclosure can significantly reduce costs, but it also means claims must be prepared with greater precision at the outset.

It is also important to point out that there are significant differences in the operation of rules around “without prejudice” communications. Documents can be recoverable in Scottish court procedure which would have remained secret in comparable English proceedings. Following on from the earlier article, this can be an effective tactic in Scottish proceedings concerning UK wide IP enforcement.

The fact that litigants need not be nearly as forthcoming in the presentation of their cases is therefore also a factor worth being aware of when there is a choice of litigating in either England or Scotland.

We are here to help

If you have any queries relating to any of the issues raised in this article, our team are are very well placed to assist. Please contact us here or email jack.rennie@andersonstrathern.co.uk if you have any questions on this topic.