Sandoz Pty Ltd v H. Lundbeck A/S (No 2) [2021] FCAFC 47

Sandoz Pty Ltd v H. Lundbeck A/S (No 2) [2021] FCAFC 47

Although Sandoz was the successful party in the appeal and the cross-appeal, given its lack of success on substantial and discrete issues, justice required that its costs be reduced. Further, there was no entitlement to indemnity costs as the offers relied on did not render it unreasonable for the respondents to persist in their claims. Accordingly, Sandoz was awarded party/party costs discounted by 50% for the trial proceedings and by 25% for the appeal and cross-appeal. Sandoz was required to pay the respondents' costs of discontinued cross-claims.

Jurisdiction
Australia
Judgment Date
30 March 2021
Procedural Posture
Appeal / Costs Determination Following Allowance of Appeal and Cross Appeal
Outcome
Costs orders made reducing the successful party's recoverable costs: Respondents/Cross-Appellants to pay 50% of Sandoz's costs at trial and 75% of Sandoz's costs on appeal/cross-appeal; Sandoz to pay respondents' costs of discontinued cross-claims.
Legal Topics
['costs Orders' 'apportionment of Costs' 'patent Infringement' 'offers of Compromise' 'indemnity Costs' 'party/party Costs']
['intellectual Property' 'civil Procedure'] ['costs Orders' 'apportionment of Costs' 'patent Infringement' 'offers of Compromise' 'indemnity Costs' 'party/party Costs']

Case Brief

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Procedural Posture

Appeal / Costs Determination Following Allowance of Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether costs awarded to the successful appellant should be discounted due to lack of success on certain issues' "Whether the appellant should pay any portion of the respondents' costs for issues on which the appellant was unsuccessful" 'Whether indemnity costs should be ordered due to Calderbank offers or offers of compromise']

Ratio Decidendi

Although Sandoz was the successful party in the appeal and the cross-appeal, given its lack of success on substantial and discrete issues, justice required that its costs be reduced. Further, there was no entitlement to indemnity costs as the offers relied on did not render it unreasonable for the respondents to persist in their claims. Accordingly, Sandoz was awarded party/party costs discounted by 50% for the trial proceedings and by 25% for the appeal and cross-appeal. Sandoz was required to pay the respondents' costs of discontinued cross-claims.

Court Disposition

Costs orders made reducing the successful party's recoverable costs: Respondents/Cross-Appellants to pay 50% of Sandoz's costs at trial and 75% of Sandoz's costs on appeal/cross-appeal; Sandoz to pay respondents' costs of discontinued cross-claims.

Orders

  • ["In NSD 22 of 2019: (1)(a) Respondents to pay 50% of appellant's costs at trial; (1)(b) Appellant to pay respondents' costs of discontinued cross-claim; (2) Respondents/cross-appellants to pay 75% of appellant/cross-respondent's costs of the appeal and cross-appeal." "In NSD 23 of 2019: (1)(a) Respondent to pay 50%...