The Secretary of State for Health & Ors v Servier Laboratories Ltd & Ors [2016] EWHC 2381 (Ch) (04 October 2016)

The Secretary of State for Health & Ors v Servier Laboratories Ltd & Ors [2016] EWHC 2381 (Ch) (04 October 2016)

The proposed amendments to plead the prescribing argument as a defence of failure to mitigate, contributory negligence, or remoteness are reasonably arguable and have a real prospect of success at trial. The question of whether the claimants acted reasonably in not encouraging switching to cheaper generics is fact-sensitive and cannot be determined summarily. The amendments are therefore permitted.

Citation
[2016] EWHC 2381 (Ch)
Parties
Claimant: The Secretary of State for Health and Others; Defendant: Servier Laboratories Limited; Defendant: Servier Research and Development Limited; Defendant: Les Laboratoires Servier SAS; Defendant: Servier SAS
Jurisdiction
England and Wales
Judgment Date
04 October 2016
Procedural Posture
Civil (competition/economic Tort) / Interlocutory Application for Permission to Amend Defence
Outcome
Application granted
Legal Topics
Mitigation of Loss, Contributory Negligence, Causation and Remoteness, Amendment of Pleadings, Abuse of Dominance, Anti Competitive Agreements
Competition Law Tort Law Civil Procedure Mitigation of Loss Contributory Negligence Causation and Remoteness Amendment of Pleadings Abuse of Dominance +1 more

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Parties

The Secretary of State for Health and Others

Claimant

Servier Laboratories Limited

Defendant

Servier Research and Development Limited

Defendant

Les Laboratoires Servier SAS

Defendant

Servier SAS

Defendant

Procedural Posture

Civil (competition/economic Tort) / Interlocutory Application for Permission to Amend Defence

Legal Issues

  1. 1 Whether the defendants should be granted permission to re-amend their defence to plead that the claimants failed to take reasonable steps to encourage switching from Perindopril to cheaper generic ACE inhibitors (the 'prescribing argument')
  2. 2 Whether the proposed amendments are reasonably arguable defences of failure to mitigate, contributory negligence, or remoteness

Ratio Decidendi

The proposed amendments to plead the prescribing argument as a defence of failure to mitigate, contributory negligence, or remoteness are reasonably arguable and have a real prospect of success at trial. The question of whether the claimants acted reasonably in not encouraging switching to cheaper generics is fact-sensitive and cannot be determined summarily. The amendments are therefore permitted.

Court Disposition

Application granted

Orders

  • Permission granted to the defendants to re-amend their defence to plead the prescribing argument and associated defences of mitigation, contributory negligence, and remoteness.