Boehringer Ingelheim KG & Anor v Swingward Ltd [2008] EWCA Civ 881 (31 July 2008)

Boehringer Ingelheim KG & Anor v Swingward Ltd [2008] EWCA Civ 881 (31 July 2008)

Defendants are entitled to 80% of their costs to date, with liberty to apply for the remaining 20% after the ECJ decides the Austrian reference. Interim payments of 50% of the awarded costs are appropriate, with no requirement for repayment undertakings, as the likelihood of a lower final figure is negligible.

Citation
[2008] EWCA Civ 881
Parties
Claimant/respondent: Boehringer Ingelheim KG; Claimant/respondent: Boehringer Ingelheim Pharma KG; Claimant/respondent: Glaxo Group Limited; Claimant/respondent: The Wellcome Foundation Limited; Claimant/respondent: Smithkline Beecham plc; Claimant/respondent: Beecham Group plc; Claimant/respondent: Smithkline and French Laboratories Limited; Claimant/respondent: Eli Lilly and Company; Defendant/appellant: Swingward Limited; Defendant/appellant: Dowelhurst Limited
Jurisdiction
England and Wales
Judgment Date
31 July 2008
Procedural Posture
Appeal (costs) / Post Judgment, Costs Determination Pending ECJ Reference
Outcome
Costs awarded in favour of defendants (Dowelhurst and Swingward) against claimants in specified proportions, with interim payments ordered and liberty to apply for remaining costs after ECJ decision.
Legal Topics
Patent Law, Costs, Interim Payments, Re Boxing, Passing Off, Notice Requirements
Intellectual Property Civil Procedure Patent Law Costs Interim Payments Re Boxing Passing Off Notice Requirements

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Parties

Boehringer Ingelheim KG

Claimant/respondent

Boehringer Ingelheim Pharma KG

Claimant/respondent

Glaxo Group Limited

Claimant/respondent

The Wellcome Foundation Limited

Claimant/respondent

Smithkline Beecham plc

Claimant/respondent

Beecham Group plc

Claimant/respondent

Smithkline and French Laboratories Limited

Claimant/respondent

Eli Lilly and Company

Claimant/respondent

Swingward Limited

Defendant/appellant

Dowelhurst Limited

Defendant/appellant

Procedural Posture

Appeal (costs) / Post Judgment, Costs Determination Pending ECJ Reference

Legal Issues

  1. 1 Entitlement to costs pending outcome of Austrian ECJ reference
  2. 2 Proportion of costs to be awarded to defendants who have succeeded on most issues
  3. 3 Appropriate interim payment orders given ongoing proceedings

Ratio Decidendi

Defendants are entitled to 80% of their costs to date, with liberty to apply for the remaining 20% after the ECJ decides the Austrian reference. Interim payments of 50% of the awarded costs are appropriate, with no requirement for repayment undertakings, as the likelihood of a lower final figure is negligible.

Court Disposition

Costs awarded in favour of defendants (Dowelhurst and Swingward) against claimants in specified proportions, with interim payments ordered and liberty to apply for remaining costs after ECJ decision.

Orders

  • Dowelhurst awarded 80% of its costs against Eli Lilly to date, with liberty to apply for the remaining 20% after ECJ decision.
  • Interim payment of £96,000 from Eli Lilly to defendants' solicitors.