The Rules of the Court of Session contain tailored rules for specific types of action. Intellectual property disputes are one example. The rules seek to speed up cases by, for example, requiring specialist IP judges to hear IP cases where possible.
A new Act of Sederunt (The Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2012) (the "Act") will come into force on Monday 19 November. The purpose of this Act, according to the explanatory note, is to "facilitate further case management of certain causes in the Outer House of the Court of Session."
The Act makes quite significant changes to the current procedure for Intellectual Property Actions in the Outer House, borrowing much of the procedure from the Court of Session Commercial Court.
Importantly, the new Act introduces a compulsory preliminary hearing two weeks after defences have been lodged. The judge can make a wide number of procedural orders at this stage. In fact, the new rules allow the judge to make any order as he thinks fit for the speedy determination of the cause. Under the old rules a hearing would not take place until around 3 months after defences were filed. This is a key innovation in the Court of Session. This hearing should focus the issues of the case at a very early stage and, as a result, costs should decrease.
There have been a number of other procedural reforms introduced by the Act. These reforms, together with the amendment of the rules relating to Procedural Hearings, all give the judge much wider powers to direct the procedure. As well as these procedural reforms the rules have now been amended to include passing off claims as a type of action that can take advantage of the IP procedure.
These reforms are a substantial improvement on the old procedure. It is clear from these new rules that the Court is keen to promote Scotland as a forum for resolving IP disputes. This will be a challenge in light of the competition from the English Patents County Court, particularly now that the Patents County Court has a small claims track. This small claims track allows litigants to resolve low value disputes at a fraction of the cost of the Court of Session procedure. There are currently no plans to introduce a Scottish equivalent.