The Secretary of State for Health & Anor v Servier Laboratories Ltd & Ors [2023] EWCA Civ 763 (03 July 2023)

The Secretary of State for Health & Anor v Servier Laboratories Ltd & Ors [2023] EWCA Civ 763 (03 July 2023)

The Court of Appeal held that the judge was entitled to determine the preliminary issues on the evidence before him, without requiring further disclosure from all PCTs/Health Boards. Servier's mitigation defence was properly dismissed as it failed to establish a general standard applicable across all PCTs/Health Boards, and its alternative case was unpleaded and vague. The claimants did not unreasonably fail to take steps to encourage switching from perindopril, and the mitigation defence could not proceed on a PCT-by-PCT basis in the absence of a clear, pleaded standard.

Citation
[2023] EWCA Civ 763
Parties
Claimant/respondent: The Secretary of State for Health; Claimant/respondent: The NHS Business Services Authority; Claimant/respondent: The Scottish Ministers and Others; Claimant/respondent: The Welsh Ministers and Others; Defendant/appellant: Servier Laboratories Limited; Defendant/appellant: Servier Research and Development Limited; Defendant/appellant: Les Laboratoires Servier SAS; Defendant/appellant: Servier SAS
Jurisdiction
England and Wales
Judgment Date
03 July 2023
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Preliminary Issues
Outcome
Appeal dismissed
Legal Topics
Abuse of Dominance, Anti Competitive Agreements, Mitigation of Loss, Disclosure, Damages, Healthcare Regulation
Competition Law Pharmaceutical Law Civil Procedure Abuse of Dominance Anti Competitive Agreements Mitigation of Loss Disclosure Damages +1 more

Case Brief

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Parties

The Secretary of State for Health

Claimant/respondent

The NHS Business Services Authority

Claimant/respondent

The Scottish Ministers and Others

Claimant/respondent

The Welsh Ministers and Others

Claimant/respondent

Servier Laboratories Limited

Defendant/appellant

Servier Research and Development Limited

Defendant/appellant

Les Laboratoires Servier SAS

Defendant/appellant

Servier SAS

Defendant/appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Preliminary Issues

Legal Issues

  1. 1 Whether claimants failed unreasonably to mitigate loss by not encouraging switching from perindopril to cheaper ACE inhibitors
  2. 2 Whether Servier's mitigation defence should proceed to trial for individual PCTs/Health Boards
  3. 3 Whether the preliminary issues could be determined without further disclosure from all PCTs/Health Boards

Ratio Decidendi

The Court of Appeal held that the judge was entitled to determine the preliminary issues on the evidence before him, without requiring further disclosure from all PCTs/Health Boards. Servier's mitigation defence was properly dismissed as it failed to establish a general standard applicable across all PCTs/Health Boards, and its alternative case was unpleaded and vague. The claimants did not unreasonably fail to take steps to encourage switching from perindopril, and the mitigation defence could not proceed on a PCT-by-PCT basis in the absence of a clear, pleaded standard.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed. The preliminary issues are determined in favour of the claimants. Servier's mitigation defence does not proceed to trial on a PCT/Health Board basis.