CMS Expert Guide on Preliminary Injunctions in IP in Scotland

PIs (known as interim interdicts in Scotland)  apply to claims involving the infringement of all typical IP rights, including  patents, trade marks, copyright, design rights, breach of confidence and passing off.  

No.

No. However, interim interdicts are typically sought in cases of urgency. If there is unreasonable delay, courts may be reluctant to grant the order.

Generally, within a few days of being instructed. In extremely urgent cases, it is possible for interim interdicts to be obtained on the same day. The Court will usually issue a decision on the PI on the day of the hearing,

Yes.  

It depends on the context. However, generally evidence should be provided to satisfy the Court that there is (i) a ‘prima facie’ case; and (ii) the balance of convenience favours the granting of the interim interdict.  Typically documentary evidence to support the claims should be lodged, together with a witness statement on behalf of the Pursuer (applicant). 

Yes, ex parte PIs are regularly granted in Scotland.

However, if the counterparty has lodged a ‘caveat’ with the court, they will be notified that an application for interim interdict has been made, giving them the opportunity to attend the hearing.  

A caveat is a ‘quirk’ to the Scottish system. It acts as an early warning system, requiring the court to notify the solicitor representing the defender that an application for interim interdict has been made.   

If the PI application is defended then a proportion of costs are recoverable. However, if the application proceeds on an ex parte basis this can be more difficult and costs may not be awarded.  

No. However, any interim interdict is granted “at risk”.  This means that if it is later determined that it was wrongly granted and caused loss to the defender, the applicant will  be liable to compensate for those losses.

No. However, any interim interdict is granted “at risk”.  This means that if it is later determined that it was wrongly granted and caused loss to the defender, the applicant will  be liable to compensate for those losses.

This can vary depending on the complexity of the case and court availability but it should generally happen quickly, due to the ongoing requirement to demonstrate urgency on both sides. 

As soon as the counter party is aware of it.  If the counterparty (or their lawyers) are present at the PI hearing, then it is effective as soon as it is granted.

If granted ex parte, the order requires to be served on the counterparty before it is effective.  

A separate action can be raised for breach of the interim interdict and contempt of court. Failure to comply may result in imprisonment or fines.

Yes (see above at answer 9).

Yes. However, if the counterparty does not enter appearance or lodge answers then a default judgment  can  be granted ex parte, and often “on the papers”, rather than requiring a hearing.