Merial and Others v Cipla Vet (Pty) Ltd (A122/2018) [2020] ZAGPPHC 343; 2021 BIP 7 (GP) (28 July 2020)

Merial and Others v Cipla Vet (Pty) Ltd (A122/2018) [2020] ZAGPPHC 343; 2021 BIP 7 (GP) (28 July 2020)

The High Court found that the order made by Murphy J regarding wasted costs was ambiguous when read in the context of paragraph 96 of the judgment, which recognized the complexity of the matter and justified the use of two counsel and expert witnesses. The court held that the intention was for the wasted costs to include the costs of two counsel and the qualifying fees of expert witnesses. The delay in bringing the application was not unreasonable given the procedural history and the respondent's conduct. The appeal was upheld, and the order was clarified to include the costs of two counsel and the qualifying fees of expert witnesses in the wasted costs.

Citation
[2020] ZAGPPHC 343
Parties
Appellant: Merial; Appellant: Merial Limited; Appellant: Merial South Africa (Pty) Ltd; Respondent: Cipla Vet (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 July 2020
Case Number
A122/2018
Procedural Posture
Civil Appeal / Appeal From the Commissioner of Patents to the High Court
Outcome
Appeal upheld; order of court a quo set aside and substituted.
Judges
R G Tolmay, Louw, Hughes
Legal Topics
Patent Infringement, Costs Orders, Interpretation of Court Orders, Rule 42 Applications
Intellectual Property Civil Procedure Patent Infringement Costs Orders Interpretation of Court Orders Rule 42 Applications

Case Brief

Summary, issues, holding and outcome

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Parties

Merial

Appellant

Merial Limited

Appellant

Merial South Africa (Pty) Ltd

Appellant

Cipla Vet (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the Commissioner of Patents to the High Court

Legal Issues

  1. 1 Whether the wasted costs order made by Murphy J included the costs of two counsel and the qualifying fees of expert witnesses.
  2. 2 Whether the order required clarification due to ambiguity or patent error or omission.
  3. 3 Whether the application for clarification was brought within a reasonable time.

Ratio Decidendi

The High Court found that the order made by Murphy J regarding wasted costs was ambiguous when read in the context of paragraph 96 of the judgment, which recognized the complexity of the matter and justified the use of two counsel and expert witnesses. The court held that the intention was for the wasted costs to include the costs of two counsel and the qualifying fees of expert witnesses. The delay in bringing the application was not unreasonable given the procedural history and the respondent's conduct. The appeal was upheld, and the order was clarified to include the costs of two counsel and the qualifying fees of expert witnesses in the wasted costs.

Court Disposition

Appeal upheld; order of court a quo set aside and substituted.

Orders

  • The appeal is upheld.
  • The order made by Baqwa J is set aside and substituted with an order clarifying that the applicants' wasted costs shall include the cost of two counsel and the qualifying fees of their expert witnesses.