Smithkline Beecham Plc & Ors v Apotex Europe Ltd & Ors [2005] EWHC 1655 (Ch) (26 July 2005)

Smithkline Beecham Plc & Ors v Apotex Europe Ltd & Ors [2005] EWHC 1655 (Ch) (26 July 2005)

The cross-undertaking in damages cannot be amended under the slip rule to retrospectively benefit the Canadian companies, as the form of the undertaking was deliberately agreed and accepted by the parties and the court. The joinder of the Canadian companies as defendants would not entitle them to retrospective benefit under the cross-undertaking. Claims based on estoppel by convention may proceed to trial, but restitutionary and third-party loss claims are not legally sustainable in this context.

Citation
[2005] EWHC 1655 (Ch)
Parties
Claimant (respondent on the Enquiry on the Cross Undertaking): SmithKline Beecham plc; Claimant (respondent on the Enquiry on the Cross Undertaking): GlaxoSmithKline UK Limited; Claimant (respondent on the Enquiry on the Cross Undertaking): Glaxo Group Ltd; Defendant (claimant on the Enquiry on the Cross Undertaking): Apotex Europe Limited; Defendant (claimant on the Enquiry on the Cross Undertaking): Neolab Limited; Defendant (claimant on the Enquiry on the Cross Undertaking): Waymade Healthcare plc; Additional Claimant on the Enquiry on the Cross Undertaking: Apotex Inc.; Additional Claimant on the Enquiry on the Cross Undertaking: Apotex Pharmachem Inc.
Jurisdiction
England and Wales
Judgment Date
26 July 2005
Procedural Posture
Patents/injunctions/cross Undertaking in Damages / Interlocutory Applications and Summary Judgment/strike Out
Outcome
Applications to amend the cross-undertaking and for joinder of Canadian companies dismissed; application to strike out estoppel by convention claim refused; restitution and third-party loss claims struck out.
Legal Topics
Patents, Interim Injunctions, Cross Undertaking in Damages, Slip Rule, Joinder of Parties, Estoppel by Convention, Restitution, Third Party Loss
Intellectual Property Civil Procedure Patents Interim Injunctions Cross Undertaking in Damages Slip Rule Joinder of Parties Estoppel by Convention +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

SmithKline Beecham plc

Claimant (respondent on the Enquiry on the Cross Undertaking)

GlaxoSmithKline UK Limited

Claimant (respondent on the Enquiry on the Cross Undertaking)

Glaxo Group Ltd

Claimant (respondent on the Enquiry on the Cross Undertaking)

Apotex Europe Limited

Defendant (claimant on the Enquiry on the Cross Undertaking)

Neolab Limited

Defendant (claimant on the Enquiry on the Cross Undertaking)

Waymade Healthcare plc

Defendant (claimant on the Enquiry on the Cross Undertaking)

Apotex Inc.

Additional Claimant on the Enquiry on the Cross Undertaking

Apotex Pharmachem Inc.

Additional Claimant on the Enquiry on the Cross Undertaking

Procedural Posture

Patents/injunctions/cross Undertaking in Damages / Interlocutory Applications and Summary Judgment/strike Out

Legal Issues

  1. 1 Whether the cross-undertaking in damages should be amended under the slip rule to benefit additional parties
  2. 2 Whether additional parties (Canadian companies) should be joined to the action to benefit from the cross-undertaking
  3. 3 Whether the draft Points of Claim disclose a reasonable cause of action or have a real prospect of success regarding the Canadian companies' claims under the cross-undertaking

Ratio Decidendi

The cross-undertaking in damages cannot be amended under the slip rule to retrospectively benefit the Canadian companies, as the form of the undertaking was deliberately agreed and accepted by the parties and the court. The joinder of the Canadian companies as defendants would not entitle them to retrospective benefit under the cross-undertaking. Claims based on estoppel by convention may proceed to trial, but restitutionary and third-party loss claims are not legally sustainable in this context.

Court Disposition

Applications to amend the cross-undertaking and for joinder of Canadian companies dismissed; application to strike out estoppel by convention claim refused; restitution and third-party loss claims struck out.

Orders

  • Application under the slip rule dismissed
  • Joinder application dismissed