Enforcing IPR in Scotland: 'Without prejudice' - not an open and closed case.

Whilst almost all substantive IP legislation and case law applies in Scotland in the same way as it does in the rest of the UK, the court procedure for enforcement of those rights is very different north of the Border.

We have pulled together a short series of briefings to guide you through some of the peculiarities of enforcing IP in Scotland and provide insights on how to navigate them effectively.

Following on from our previous blog discussing the lack of document disclosure, we’ll now explore how, despite IP law in Scotland largely mirroring that of the rest of the UK, there are distinct differences in procedure and evidence.

In this final blog, we will examine one area that can pose challenges, the differing application of “without prejudice” privilege between the two jurisdictions. No doubt many IP lawyers will send “without prejudice” correspondence across the Border, in both directions, without necessarily giving close thought to the differences in the law of evidence between the two jurisdictions. There are a few pitfalls for the unwary.

An important distinction is the limits of the effect of “without prejudice” privilege in Scotland as compared to in England & Wales. The Scottish Courts do not follow the broad protection outlined in Lord Griffiths’ speech in Rush & Tompkins. In the Scottish courts, an unequivocal admission or statement of fact, even if made on a “without prejudice” basis as part of settlement negotiations, may not protected. The English judiciary’s focus on public policy reasons means such statements may be privileged.

In Scotland, we do not typically send open and closed correspondence. It is normal practice 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 at the very end of each letter.

That docket will state, although the correspondence 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 privileged content that cannot be waived by the receiving party.

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 may come as an unwelcome surprise.

To conclude our blog series, please find the links to our previous posts below if you missed any of them.

Enforcing IPR in Scotland: Strategies to avoid ambush litigation.

Enforcing IPR in Scotland: Cost and timescales

Enforcing IPR in Scotland: The lack of document disclosure

If any of our blogs have raised questions or concerns about IPR enforcement, please don’t hesitate to reach out. Our Intellectual Property team is always happy to discuss and provide guidance.

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