Smithkline Beecham Plc & Ors v Apotex Europe Ltd. & Ors [2005] EWHC 1122 (Pat) (26 May 2005)

Smithkline Beecham Plc & Ors v Apotex Europe Ltd. & Ors [2005] EWHC 1122 (Pat) (26 May 2005)

The application for preliminary issues is refused. The entitlement of the Canadian parties to claim under the cross-undertaking should first be determined by considering whether their pleaded case survives a strike out or summary judgment application under CPR 3.4 and CPR 24. Only if the claims survive should further directions, including possible preliminary issues, be considered.

Citation
[2005] EWHC 1122 (Pat)
Parties
Claimants/respondents: SmithKline Beecham PLC & Others; Defendants/applicants: Apotex Europe Limited & Others
Jurisdiction
England and Wales
Judgment Date
26 May 2005
Procedural Posture
Patent Action (application for Directions in Inquiry on Cross Undertaking) / Interlocutory Application for Preliminary Issues and Joinder/strike Out of Parties
Outcome
Application for preliminary issues refused; direction given for strike out/summary judgment application to be heard; costs reserved to July hearing.
Legal Topics
Patents, Interlocutory Injunctions, Cross Undertakings in Damages, Joinder of Parties, Strike Out Applications, Preliminary Issues
Intellectual Property Civil Procedure Patents Interlocutory Injunctions Cross Undertakings in Damages Joinder of Parties Strike Out Applications Preliminary Issues

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Parties

SmithKline Beecham PLC & Others

Claimants/respondents

Apotex Europe Limited & Others

Defendants/applicants

Procedural Posture

Patent Action (application for Directions in Inquiry on Cross Undertaking) / Interlocutory Application for Preliminary Issues and Joinder/strike Out of Parties

Legal Issues

  1. 1 Whether Apotex Inc. and Apotex Pharmachem Inc. (Canadian companies) can claim under the cross-undertaking in damages despite not being express beneficiaries
  2. 2 Whether preliminary issues should be ordered to determine entitlement of Canadian parties
  3. 3 Whether claims by Canadian parties should be struck out under CPR 3.4 and CPR 24

Ratio Decidendi

The application for preliminary issues is refused. The entitlement of the Canadian parties to claim under the cross-undertaking should first be determined by considering whether their pleaded case survives a strike out or summary judgment application under CPR 3.4 and CPR 24. Only if the claims survive should further directions, including possible preliminary issues, be considered.

Court Disposition

Application for preliminary issues refused; direction given for strike out/summary judgment application to be heard; costs reserved to July hearing.

Orders

  • Refusal of application for preliminary issues.
  • Direction that the issue of whether the Canadian parties' claims survive under CPR 3.4 and CPR 24 be determined at the pre-booked hearing.