Cipla Medpro (Pty) Ltd v H Lundbeck A/S and Another In re: H Lundbeck A/S and Another v Cipla Medpro (Pty) Ltd (89/4476) [2010] ZACCP 6; 2010 BIP 80 (CP) (24 May 2010)

Cipla Medpro (Pty) Ltd v H Lundbeck A/S and Another In re: H Lundbeck A/S and Another v Cipla Medpro (Pty) Ltd (89/4476) [2010] ZACCP 6; 2010 BIP 80 (CP) (24 May 2010)

The court found that the omission of expert witness qualifying fees from the costs orders was not a patent error or omission attributable to the court, but rather a result of the applicant's legal representatives failing to request such relief during argument. The parties had argued costs and the court made final orders reflecting its intention. Under Rule 42(1)(b), no basis existed for variation, and under the common law, the exceptions permitting supplementation did not apply because the issue of costs had been argued and decided. Furthermore, the applicant failed to bring the application within a reasonable time, waiting over a year after the original orders. The delay was due to the...

Citation
[2010] ZACCP 6
Parties
Applicant: Cipla Medpro (Pty) Ltd; Respondent: H Lundbeck A/S; Respondent: Lundbeck SA (Pty) Ltd
Court
Court of the Commissioner of Patents
Jurisdiction
South Africa
Judgment Date
24 May 2010
Case Number
89/4476
Procedural Posture
Civil Application / Application to Vary Costs Order Under Rule 42(1)(b)
Outcome
Applications dismissed with costs.
Judges
B.R. Southwood
Legal Topics
Variation of Court Order, Patent Litigation, Costs Award, Expert Witness Fees
Civil Procedure Intellectual Property Variation of Court Order Patent Litigation Costs Award Expert Witness Fees

Case Brief

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Parties

Cipla Medpro (Pty) Ltd

Applicant

H Lundbeck A/S

Respondent

Lundbeck SA (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application to Vary Costs Order Under Rule 42(1)(b)

Legal Issues

  1. 1 Whether the applicant is entitled to a variation of the costs order to include qualifying fees for its expert witness.
  2. 2 Whether Rule 42(1)(b) or the common law permits supplementation of the costs order in these circumstances.
  3. 3 Whether the application was brought within a reasonable time after the original orders.

Ratio Decidendi

The court found that the omission of expert witness qualifying fees from the costs orders was not a patent error or omission attributable to the court, but rather a result of the applicant's legal representatives failing to request such relief during argument. The parties had argued costs and the court made final orders reflecting its intention. Under Rule 42(1)(b), no basis existed for variation, and under the common law, the exceptions permitting supplementation did not apply because the issue of costs had been argued and decided. Furthermore, the applicant failed to bring the application within a reasonable time, waiting over a year after the original orders. The delay was due to the...

Court Disposition

Applications dismissed with costs.

Orders

  • The applications are dismissed with costs.