Smithkline Beecham Plc & Ors v Apotex Europe Ltd & Ors

Smithkline Beecham Plc & Ors v Apotex Europe Ltd & Ors

The cross-undertaking in damages cannot be amended under the slip rule to benefit non-defendant Canadian companies, as the undertaking was expressly limited and not an accidental omission. Joinder of Canadian companies as defendants would not have retrospective effect. Claims based on restitution and third party loss are legally unsustainable. Only the estoppel by convention claim survives to trial.

Parties
Claimant: SmithKline Beecham PLC; Claimant: GlaxoSmithKline UK Limited; Claimant: Glaxo Group Ltd; Defendant: Apotex Europe Limited; Defendant: Neolab Limited; Defendant: Waymade Healthcare PLC; Proposed Additional Defendant: Apotex Inc.; Proposed Additional Defendant: Apotex Pharmachem Inc.
Jurisdiction
England and Wales
Judgment Date
26 July 2005
Procedural Posture
Civil (patents/injunctions) / Ruling on Applications to Amend Cross Undertaking, Join Parties, and Strike Out Claims
Outcome
Applications to amend the cross-undertaking and for joinder dismissed; claims based on slip rule, restitution, third party loss, and Neolab's profit share struck out or summary judgment entered for GSK; estoppel by convention claim allowed to proceed.
Legal Topics
Interim Injunctions, Cross Undertakings in Damages, Slip Rule, Joinder of Parties, Estoppel by Convention, Restitution, Third Party Loss, Damages Assessment
Intellectual Property Civil Procedure Interim Injunctions Cross Undertakings in Damages Slip Rule Joinder of Parties Estoppel by Convention Restitution +2 more

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Parties

SmithKline Beecham PLC

Claimant

GlaxoSmithKline UK Limited

Claimant

Glaxo Group Ltd

Claimant

Apotex Europe Limited

Defendant

Neolab Limited

Defendant

Waymade Healthcare PLC

Defendant

Apotex Inc.

Proposed Additional Defendant

Apotex Pharmachem Inc.

Proposed Additional Defendant

Procedural Posture

Civil (patents/injunctions) / Ruling on Applications to Amend Cross Undertaking, Join Parties, and Strike Out Claims

Legal Issues

  1. 1 Whether the cross-undertaking in damages should be amended under the slip rule to benefit non-defendant Canadian companies
  2. 2 Whether Canadian companies should be joined as defendants to benefit from the cross-undertaking
  3. 3 Whether claims based on estoppel by convention, restitution, and third party loss are legally sustainable

Ratio Decidendi

The cross-undertaking in damages cannot be amended under the slip rule to benefit non-defendant Canadian companies, as the undertaking was expressly limited and not an accidental omission. Joinder of Canadian companies as defendants would not have retrospective effect. Claims based on restitution and third party loss are legally unsustainable. Only the estoppel by convention claim survives to trial.

Court Disposition

Applications to amend the cross-undertaking and for joinder dismissed; claims based on slip rule, restitution, third party loss, and Neolab's profit share struck out or summary judgment entered for GSK; estoppel by convention claim allowed to proceed.

Orders

  • Application under the slip rule dismissed
  • Joinder application dismissed