Monday, May 05, 2008

Lawyers 'Bring your litigation to Scotland' campaign seen as disaster for justice system & clients alike

In the latest attempt to bring business to Scotland's flagging legal sector, recent moves have been made to promote Scots justice and venues of litigation north of the border over those in England & Wales.

Potential clients are being told - bring your litigation to Scotland and we will handle it much better, but as corporate clients report in on stalled cases, and huge legal bills for little work done, it may well be best to avoid bringing your case to Scotland and getting bogged down in the mire of poor legal service & competency of legal agents currently & historically affecting the Scots justice system ...

The Scotsman reports :

Scottish Court of Session an advantageous alternative to London litigation

By Philippa Montgomerie

INTELLECTUAL property (IP) rights are essential to the strength of Scottish industry. Increasingly, IP rights need to be enforced to be of any real commercial value and this raises the question of whether Scotland offers a viable alternative to London as an appropriate forum for seeking justice in such specialist disputes.

As a solicitor with an IP practice in Scotland and with experience of London IP litigation, I believe it is important to have a robust local system within a global marketplace. The Court of Session has advantages over its English counterpart.

An easy flag to wave is the lower costs of litigating here. It is unlikely that an action in Edinburgh would cost anywhere near the £5 million incurred by manufacturer Research in Motion in the recent Blackberry case. Yet, while litigation in London is expensive, it comes with the benefit of well– respected IP judges. This is the challenge that the Court of Session, the Scottish bar and local law firms have risen to meet.

Lord Hodge and Lady Smith are two IP judges at the Court of Session who are willing and able to hear complex IP cases. They have a reputation for fair and commercial decisions.

It is essential for a company to stop IP infringements quickly. An interim interdict immediately stops any alleged infringement at a relatively low cost and is easier and quicker to obtain in Scotland. In some cases, it can be obtained without giving notice to the alleged infringing party and in their absence.

This is an effective message to alleged infringers and provides the IP right holder with an advantage in negotiations for a long-term resolution.

While the Scottish system offers initial speed, IP cases are dealt with increasingly quickly in London, aided by procedures to shorten the time a case takes to come to court. Although overall the Scottish system is slower, its IP procedure does have advantages, with a specialist IP judge allocated early on. That judge presides over an initial hearing that sets a timetable for the litigation. This gives the parties a clear guide to time and costs involved.

This type of litigation in Scotland will increase in popularity if it is made an attractive alternative to the specialised, but expensive, courts in London.

The Scottish legal system could benefit by focusing on issues rather than taking the kitchen sink approach favoured by litigants in England. This would make the Court of Session a preferred competitor to London for some clients.

Richard Keen, Dean of the Faculty of Advocates, spoke about the future of such litigation in Scotland at the recent KPMG Forensic Law Lecture. He proposed allocating more court time for commercial cases ahead of family and criminal cases. He argued that some of these cases could be served by Sheriff Court.

With the growing strength of Scottish technology and bio-technology sectors, there is no reason why the Scottish Court of Session should not be an attractive alternative to London.

• Philippa Montgomerie is an associate of DLA Piper Scotland and an IP specialist.

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