New legislation, which came into force on 19 November 2012, is designed to make intellectual property actions in the Court of Session in Edinburgh, the equivalent of the High Court in England, more efficient.
The Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2012 makes significant changes to the current case management procedure for intellectual property actions, providing a compulsory preliminary hearing and granting judges wider powers to expedite cases as they see fit. Judges can make orders to restrict evidence and cross-examination, to disclose key issues in dispute and to seek outside reports or experts, as well as to restrict counter-claims. Such changes are likely to focus the issues in dispute at an earlier stage and, in turn, reduce costs for both parties.
In addition to the procedural reforms introduced by the Act, the changes include for the first time claims for passing off under the common law in the definition of types of IP actions.
These procedural reforms are a response to the introduction of a small claims track procedure at the Patents County Court in England and Wales on 1 October 2012. However, the small claims track was designed to settle low value IP disputes at limited costs. Whether litigants choose Scotland as an alternative forum in light of these new reforms remains to be seen. For some, capped costs south of the border could be the determining factor.