IP, Technology & Data

As a Scottish litigator and lover of the very specific and detailed rules relating to service and intimation in the Court of Session I was shocked when I saw that the English High Court had allowed service of an injunction via Twitter. My initial reaction was that there was no way that such a thing would be allowed in Scotland.

However, upon further research, it appears that this could also be attempted north of the border. The Scots equivalent of an injunction is an interdict and when one is seeking an interdict it is usual to seek an order for interim interdict pending a full hearing. In reality most IP actions tend to come to an end at this stage.

If one succesfully obtains an order for interim interdict normal practice is to rush to the court offices and obtain a certified copy of the court order which is then served by Messengers-at-Arms (process servers). It was this level of formality which led me to my shock at the suggestion that an order for interim interdict could possibly be served informally.

However, having looked more closely at the Court Rules and some older authorities, it appears that the position in Scots Law is that an order for interim interdict is valid as soon as it is granted by a judge. It then becomes operative when the respondent or defender becomes sufficiently aware of its contents (Clark v Stirling (1839) 1 D 955 and Burn-Murdoch on Interdict at para 447). Strictly speaking then, there is no formal requirement for service in order for the interim interdict to become operative.

Theoretically then, one could argue in proceedings for breach of interdict that the defender had been made sufficiently aware of the contents of the order as a result of service by Twitter. It is likely though that the bigger problem in Scots law would be obtaining an interim interdict against an unknown defender (the general rule being that interdict cannot affect unnamed persons (Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122).)

There are options here as well though. If contacting the site moderator and ISP prove unsuccesful, it would also be possible to seek an order from the Court under s1(1A) of the Administration of Justice (Scotland) Act 1972 compelling the host site or ISP to disclose such information as they may have regarding the identity of the blogger. I feel another blog coming on…

Iain Rutherford

Partner at Brodies LLP
Iain advises clients in relation to a broad range of commercial disputes with an emphasis on IT & telecoms, energy & corporate disputes and banking and financial services litigation.Iain has also acted for banks and financial services institutions in relation to high profile and high value professional negligence, misrepresentation, contractual and pensions disputes.
Iain Rutherford

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