“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where 'the balance of convenience' lies.”
“The learned judge appears to have regarded the plaintiffs' whole United Kingdom business in instant photographic products as the relevant field of inquiry. With deference, I think this may not be right. One only of the patents in suit relates in any way to the "peel-apart" process. That is a patent numbered 1,071,088, which relates to films, the invention of which can, as I understand it, be used in either process. There is no evidence that any other "peel-apart" processes used by the plaintiffs are now protected by patents. To any extent that they are not so protected, the defendants are entitled to compete with the plaintiffs in using them. To any extent that they are so protected, the relevant patents protect the plaintiffs from infringement of the claims of those patents, but do not protect the plaintiffs from any form of trade competition which does not infringe those patents. The patents in suit protect the plaintiffs from infringement of the claims of those patents. Can they also protect the plaintiffs from loss resulting from competition in respect of goods of a different kind not protected by the patents in suit occasioned by acts involving infringement of the patents in suit? In other words, can infringement support a claim for what is sometimes graphically (but I think rather inelegantly) described as parasitic damages? Each patent is designed to protect the monopoly granted by that patent. This, I think, appears from the form of the grant, in which the command against infringement contained in it is expressed to be "to the end that the patentee may have and enjoy the sole use and exercise and the full benefit of the said invention". The patent is not, in my opinion, intended to protect the patentee in the enjoyment of any other subject-matter. Accordingly, I am inclined to think that any effect which the defendants' sales of "integral" products in the United Kingdom may have on the plaintiffs' "peel-apart" business (except perhaps in respect of infringements of No. 1,071,088) is irrelevant. But I do not think that it is necessary for present purposes to express a concluded view on this question, which may well deserve more extended argument than we have heard on it; for, if I am wrong about this, it seems to me that the question whether any damage of this kind suffered by the plaintiffs between now and the trial will be capable of satisfactory quantification and of being compensated in money damages depends upon the factors and the considerations which I have already discussed. So, I do not think that a case is made for saying that any damage to the "peel-apart" section of the plaintiffs' business which may result from any infringement during the period between now and the trial should be regarded as irreparable damage or damage which ought to be avoided by the grant of an interlocutory injunction.”
“I agree with the order my Lord has proposed and with the reasons which he has given for it. Like my Lord, I think the plaintiffs are not entitled to rely upon any apprehended injury to their "peel-apart" business, save in so far as it might arise from an infringement of the one patent No. 1,071,088, and that could not cover anything like the whole ambit of the "peel-apart" business. So to rely would be setting up a monopoly wider than that granted by the relevant patents. I think it might also be put another way, that such damage is too remote and that one is not entitled to an injunction to avoid damages which, if suffered, would be too remote. But I agree with my Lord that it is not necessary for us to resolve those questions, nor should we at this stage do so.”
". . . one is not entitled to an injunction to avoid damages which, if suffered, would be too remote"
“61. The upshot of all the foregoing is that I hold that there is a serious issue to be tried. Following the Cyanamid guidelines the next question to be considered is whether damages are an adequate remedy either to the claimant or to Apotex on the claimant's cross-undertaking should be claimants fail at trial. Mr Watson accepts that if Apotex, or indeed any other generic company, enters the market SB will not only lose substantial sales but the price will collapse. It is suggested that Apotex might take as much as 40% of the UK paroxetine market before trial. On top of that SB's prices would be severely eroded. He accepts that damage, perhaps as much as£5m worth, might be caused. In my judgment the position is exactly the same as it was when I granted an interim injunction concerning paroxetine in SmithKline Beecham v Generics,23 October 2001 . The position in fact is much the same as it was then. Then SB had one distributor, Norton, and now have three. But if Apotex enter the market the arrangements with those companies are likely to be undermined for the same reasons as I gave before. 62. Mr Watson accepted that he had a tall order to persuade me that I was wrong last time. He made the same points as were made last time. The point he concentrated upon most, namely that if his clients enter the market there will be a certain history as to what happened to SB's sales and the inroads made into their market, whereas if an injunction is granted how much Apotex would have sold would remain a matter of speculation. Mr Watson invited SB to accept that absent an injunction Apotex would take 40% of the market. Not surprisingly SB did not so accept. That, said Mr Watson, showed how uncertain his claim on any cross-undertaking might be. 63. As in the last case there is evidence of the difficulty of raising a price once it has been lowered and of the complications of the fact that the prices link with the prices for other drugs and so on. I think there would be formidable difficulties in SB's way if it tried to get back to its present position after a major collapse of prices. I remain firmly convinced that the damage caused by entry into the market on a substantial scale will be both very, very substantial and not adequately quantifiable. The position is as described by Kay LJ in Lyons v Wilkins approved by Lord Wilberforce in Garden Cottage (see above). 64. I also accept that the damage to Apotex if the injunction is wrongly granted is unquantifiable and yet substantial. One would have to form a view as to what proportion of the market they would have gained. That would not be entirely a matter of speculation because by the time of the enquiry Apotex would have entered the market, or others would have entered into the market, and one could form a view as to how much Apotex would have got. The effect on prices and so on would by then be known. So it would not be a matter of speculating entirely without any basis.”
“In an expedited appeal by the company against the judge's refusal to grant an interlocutory injunction, the Court of Appeal [1982] Q.B. 1114 delivered an extempore judgment on May 18, 1982, shortly after the publication in the Weekly Law Reports [1982] 2 W.L.R. 322 of the decision of this House in Hadmor Productions Ltd. v. Hamilton [1983] 1 A.C. 191, in which this House took occasion, at p. 220, to point out that on an appeal from the judge's grant or refusal of an interlocutory injunction an appellate court, including your Lordships' House, must defer to the judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of an appellate court is initially that of review only. It is entitled to exercise an original discretion of its own only when it has come to the conclusion that the judge's exercise of his discretion was based on some misunderstanding of the law or of the evidence before him, or upon an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own.”
“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he would not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial …”