Although almost all IP law is the same in Scotland as it is in the rest of the UK, there are areas of difference in procedure and evidence. An area that often causes some confusion amongst English IP litigators is the operation of the Scottish application of “without prejudice” privilege. No doubt many IP lawyers will send “without prejudice” correspondence across the Border, in both directions, without necessarily giving thought to the differences in the law of evidence between the two jurisdictions. There are a few pitfalls for the unwary.

In Scotland, we do not typically send open and closed correspondence. It is more typical in Scotland to issue a single letter with the expectation that any privileged content will be redacted if the correspondence is produced in court.  Instead of prominently labelling letters “WITHOUT PREJUDICE” or “WITHOUT PREJUDICE, SAVE AS TO COSTS” Scots lawyers insert a “without prejudice” docket hidden at the end of each letter.

That docket will state, although the letter is written on a “without prejudice” basis, that privilege can be waived by the party on whose behalf it has been sent and then founded upon. Unlike the practice in England, there is no express qualification in relation to costs, but that is implied. Of course, if that letter contains content in which the other side can claim privilege that cannot be waived and must be respected.

From discussions with England based IP lawyers, we understand the ability to unilaterally waive your own “without prejudice” privilege is a significant difference between our jurisdictions and is something that English lawyers should be aware of if corresponding in cases which might be subject to the jurisdiction of the Scottish courts.

The practical effect is that a party may choose to produce in court their own privileged communications – something which English IP lawyers might not realise until the document is before the court!