Smithkline Beecham Plc Glaxosmithkline UK Ltd & Ors v Apotex Europe Ltd & Ors

Smithkline Beecham Plc Glaxosmithkline UK Ltd & Ors v Apotex Europe Ltd & Ors

Non-party Canadian companies cannot claim under the cross-undertaking in damages given in support of the interim injunction. There is no basis in English law for a restitutionary claim by non-parties for profits or lost opportunities resulting from a 'wrongful' injunction. Estoppel cannot be used to create substantive rights or expand the scope of a court order to benefit non-parties. Third party loss is not recoverable under the cross-undertaking. The appeal is dismissed, the cross-appeal is allowed, and the Canadian companies' application to advance claims on their own behalf is refused.

Parties
Claimant/respondent on the Cross Undertaking: Smithkline Beecham plc; Claimant/respondent on the Cross Undertaking: Glaxosmithkline UK Ltd; Claimant/respondent on the Cross Undertaking: Glaxo Group Ltd; Defendant/claimant on the Cross Undertaking: Apotex Europe Ltd; Defendant/claimant on the Cross Undertaking: Neolab Ltd; Defendant/claimant on the Cross Undertaking: Waymade Healthcare Ltd; Additional Claimant on the Cross Undertaking: Apotex Inc; Additional Claimant on the Cross Undertaking: Apotex Pharmachem Inc (formerly Brantford Chemicals Inc)
Jurisdiction
England and Wales
Judgment Date
23 May 2006
Procedural Posture
Civil Appeal (patents/injunctions) / Appeal and Cross Appeal From High Court Judgment
Outcome
Appeal dismissed; cross-appeal allowed; application by Canadian companies refused.
Legal Topics
Cross Undertaking in Damages, Restitution, Estoppel, Third Party Loss, Joinder of Parties, Interim Injunctions
Intellectual Property Civil Procedure Cross Undertaking in Damages Restitution Estoppel Third Party Loss Joinder of Parties Interim Injunctions

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Parties

Smithkline Beecham plc

Claimant/respondent on the Cross Undertaking

Glaxosmithkline UK Ltd

Claimant/respondent on the Cross Undertaking

Glaxo Group Ltd

Claimant/respondent on the Cross Undertaking

Apotex Europe Ltd

Defendant/claimant on the Cross Undertaking

Neolab Ltd

Defendant/claimant on the Cross Undertaking

Waymade Healthcare Ltd

Defendant/claimant on the Cross Undertaking

Apotex Inc

Additional Claimant on the Cross Undertaking

Apotex Pharmachem Inc (formerly Brantford Chemicals Inc)

Additional Claimant on the Cross Undertaking

Procedural Posture

Civil Appeal (patents/injunctions) / Appeal and Cross Appeal From High Court Judgment

Legal Issues

  1. 1 Whether non-party Canadian companies can claim under a cross-undertaking in damages given in support of an interim injunction
  2. 2 Whether a claim in restitution lies for non-parties affected by an interim injunction
  3. 3 Whether a party to the cross-undertaking can recover third party losses

Ratio Decidendi

Non-party Canadian companies cannot claim under the cross-undertaking in damages given in support of the interim injunction. There is no basis in English law for a restitutionary claim by non-parties for profits or lost opportunities resulting from a 'wrongful' injunction. Estoppel cannot be used to create substantive rights or expand the scope of a court order to benefit non-parties. Third party loss is not recoverable under the cross-undertaking. The appeal is dismissed, the cross-appeal is allowed, and the Canadian companies' application to advance claims on their own behalf is refused.

Court Disposition

Appeal dismissed; cross-appeal allowed; application by Canadian companies refused.

Orders

  • Canadian companies' claims in restitution and for third party loss struck out.
  • Estoppel claim by Canadian companies struck out.