Early warnings against interim injunctions in the Scottish courts

If you’re a solicitor working within the English legal system, you might be interested to learn that Scotland’s civil court system shares many similarities with its English counterpart. There are county courts (called the “Sheriff Court”), the High Court (the “Court of Session”) and the Court of Appeal (the “Inner House”) with an ultimate appeal to the Supreme Court in London. There are barristers (‘advocates’), pupils (‘devils’) and even solicitors…(“solicitors”!).

There are, however, many important differences between the court rules and procedures and some elements uniquely useful elements to the Scottish system. One such difference is called a ‘caveat’.

What is a caveat?

The Scottish court rules allow a person to lodge a caveat with the court, this is an early warning of any attempt to obtain an interim injunction (an interim “interdict”) or any other interim order for that matter. When a motion for an interim order is made, the court must contact the solicitor who lodged the caveat giving the defendant (‘defender’) a vital opportunity to oppose the motion and prevent the interim order from being granted. No interim order has been made until that has happened.

Why are caveats important?

There are many situations where interim orders may be sought and have significant impact – for example, to prevent commencement of work on a property development in breach of title deeds or supply under a contract in breach of an exclusivity agreement.

The Court of Session also has (in some cases) the power to grant an interim interdict relating to infringement of IP rights UK wide not just in Scotland. A recent example of this was William Grant v Lidl in which the pursuer chose to sue in Scotland and obtained a UK wide interdict relating to use of a copycat gin bottle design. This can be an attractive course in IP cases given that Scottish litigation tends to be significantly less expensive than the equivalent proceedings in London.

Without a caveat, the first a defender learns of an interim order is when process servers (“Messengers at Arms” or “Sheriff Officers”) knock on the door with the court order (the “interlocutor”).  Once served, the interim order must be complied with (and a failure to do so may be treated as a contempt of court).

A caveat costs just £225 per court per year (including the court fee). A small cost when compared to the enormous real-world value of the early warning.

How we can help

We routinely recommend that clients with commercial operations or property in Scotland (and any degree of risk of interim orders being pursued) should have caveats in place.

Please contact Edward Gratwick, Partner and Solicitor Advocate, in our Dispute Resolution team (edward.gratwick@andersonstrathern.co.uk) to learn more.

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