"1. Pregabalin should only be prescribed for the treatment of neuropathic pain under the brand name Lyrica (unless there are critical contra-indications or other special clinical needs e.g. a patient allergic to an excipient, branded product unavailable etc which apply to Lyrica, when you should not prescribe Lyrica or pregabalin). 2. When prescribing pregabalin for the treatment of neuropathic pain to patients you should (so far as reasonably possible): a) prescribe by reference to the brand name Lyrica; and b) write the prescription with only the brand name "
"If the Court later finds that this Order has caused loss to the Respondent, the Department of Health, the Actavis group of companies, the Teva group of companies or the Dr Reddy's group of companies, and decides that the Respondent, Department of Health, the Actavis group of companies, the Teva group of companies or Dr Reddy's Laboratories (UK) Limited should be compensated for that loss, the Applicant will comply with any order the Court may make."
"If the Court later finds that this Order has caused loss to [Sandoz or any company in the Sandoz group], the Department of Health and/or the National Health Service Commissioning Board and decides that [Sandoz or any company in the Sandoz Group], the Department of Health and/or the National Health Service Commissioning Board should be compensated for that loss, [Pfizer] will comply with any order the Court may make."
"If the Court later finds that the [NHS Guidance Order] has caused loss from3 October 2015 onwards to [Sandoz or any company in the Sandoz group] .. and decides that [Sandoz or any company in the Sandoz group] should be compensated for that loss from3 October 2015 ... [Pfizer] will comply with any Order the Court may make."
"(a) What are the appropriate counterfactual assumptions over the period from8 July 2014 (expiry of Pfizer's data exclusivity) to present upon which to determine any damages payable to each of the Inquiry Claimants in the Inquiry Claims? (b) To what extent (if not already answered at (a)) are findings of fact binding as between different parties in these proceedings?"
"1. Is it correct to assess the counterfactual for each Inquiry Claim on the assumption that the same Threats, Relevant Orders and Undertakings were or were not made across all the Inquiry Claims? 2. Is it correct to assume, as a matter of law, in the counterfactual for each Inquiry Claim that none of the Threats, Relevant Orders and the Undertakings were made, and if not, which of the Threats, Relevant Orders and Undertakings should it be assumed would have been made in the counterfactual for each Inquiry Claim? 3. In determining the amount of damages (if any), is it appropriate to assess the Inquiry Claimants' loss on the assumption that any or all of the claims of the Patent were known by all to be invalid at all relevant times following expiry of Pfizer's data exclusivity on8 July 2014 ? 4. Is it correct to assume, as a matter of law, that the Inquiry Defendant could not have restrained prescribers or dispensers from prescribing or dispensing pregabalin for pain and/or restrained generic manufacturers from launching full label products, and if so then (having regard to the chronology) from which date? 5. Is it correct to assume, as a matter of law, that the Inquiry Defendant could not have threatened any parties with patent infringement proceedings and if so then from which date? 6. Is it correct to assume, as a matter of law, that the Inquiry Defendant could not have restrained launch of full label products by Sandoz or other manufacturers and if so then from which date?"
"It is compensating for loss for which the defendant "should be compensated" (to apply the words of the undertaking). Labels such as "common law damages" and "equitable compensation" are not, to my mind, useful. The court is compensating for loss caused by the injunction which was wrongly granted. It will usually do so applying the useful rules as to remoteness derived from the law of contract, but because there is in truth no contract there has to be room for exceptions."
"In a proceeding of an equitable nature it is generally proper to adopt a view which is just and equitable, or fair and reasonable, in all the circumstances rather than to apply a rigid rule. However the view that the damages should be those which flow directly from the injunction and which could have been foreseen when the injunction is granted, is one which will be just and equitable in the circumstances of most cases..."
".it is perfectly clear, and it appears from the words of the undertaking themselves, that the only damage to which a defendant is entitled are those which he has sustained by reason of the grant of the injunction. The generally accepted view is that the damages must be confined to loss which is the natural consequence of the injunction under the circumstances of which the party obtaining the injunction has notice .. In a number of authorities the court has distinguished between loss which was caused by the injunction and loss which arose from the litigation..."
".. .the effect of the order was intended to be, and was likely to be, that prescribers prescribed pregabalin for treating pain by reference to the brand name Lyrica rather than the generic name pregabalin. If prescribers did so, then pharmacists would be obliged to dispense Lyrica rather than generic pregabalin for treating pain. If it turned out that the Patent was invalid, however, then Teva should not have been prevented from making sales of generic pregabalin which pharmacists would otherwise have dispensed for the treatment of pain whether or not Teva would infringe the Patent if it was valid by selling the product under a skinny label."
"If the question goes to arbitration, the arbitrator's duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark?"
"with the benefit of hindsight and after investigation of all the facts, the court at trial may decide that the claimant (in whose favour the injunction was granted) is not entitled to the relief claimed"
".. .the notion that it is to be assumed contrary to the fact that the interlocutory injunction was refused let alone that it was refused on the ground that founded the Full Court's orders is irreconcilable with the repeated emphasis in Air Express on the requirement that any compensation relate to the effect of the interlocutory orders, not the litigation. To assume otherwise would effectively remove the majority of the risk which the method patent presented to the generics. If the analysis proceeds on that basis, the inevitable tendency would be to compensate the generics for the existence of the method patent and the litigation which is impermissible."
"I made clear to the parties that compensation could not be assessed on the basis of inconsistent hypotheses. There could be disputes about the construction of the applicable hypotheses but, once constructed, the hypotheses must be consistent across all claims. Otherwise no determination of compensation could be just, at least not to Wyeth. To give an example, the generics and the manufacturers/suppliers did not agree about hypothetical supply prices. Because the claims of the manufacturers/suppliers depend on the generics, there cannot be inconsistent hypothesised supply prices between them." (2) She returned to this point, at [231] to [232]: "231. ...Is it necessary or appropriate to disregard the grant of Sigma interlocutory injunction when considering Alphapharm's position had the Alphapharm interlocutory injunction not been granted? And is it necessary or appropriate to disregard the grant of Sigma and Alphapharm interlocutory injunctions when considering Generic Health position had the Generic Health interlocutory injunction not been granted? 232. In my view, these two questions must be answered yes, as otherwise it is not practically possible to construct consistent hypotheses of what would or might have occurred in any case. For example, if when considering Sigma's position it is taken that Sigma would not be subject to the Sigma interlocutory injunction but when considering Alphapharm's position it is taken that Sigma was subject to an interlocutory injunction, then the inevitable consequence is that the hypothesised market for Alphapharm is distorted from the outset. The hypothesised market on this latter approach would contain only Alphapharm when, in fact, it is known that Sigma was and would have been the first to market."
"I have accepted that the final injunctions on8 November 2010 must represent the date from which no compensation is payable. Those final injunctions, of course, were also wrongly granted but Wyeth's undertakings did not extend to any effect of the final injunctions (and nor logically could they do so given the principles which found the requirement to give the usual undertaking as to damages as the price of interlocutory orders). Unfair as it no doubt appears to the claimants, losses sustained as a result of a wrongly granted final injunction must lie where they fall."
"In the real world, if all four landowners had sold their land at the respective valuation dates without having first applied for planning permission, the market would no doubt have valued each parcel on the basis of hope value. It would be necessary for a purchaser to assess the likelihood of planning permission being granted for that particular parcel of land. The price paid would have reflected that assessment. In the real world more than one landowner could have had a reasonable expectation of the grant of planning permission for rationed development, even though only one of them would have actually achieved that. But what section 14 of the LCA does is to convert a reasonable expectation of planning permission into a certainty. It is not surprising that converting four reasonable expectations of planning permission into four certainties may have the cumulative effect of increasing the overall compensation payable to a level beyond that which would have been achieved in the real world. That, to my mind, is a clear encroachment on or modification of the principle of equivalence (as Mr King accepted), to which the courts are bound to give effect."