“Dick [Binnington, API sourcing manager for the Arrow Group] to look and see if we can get a supply. Failing that, I will look to Neuland.”
“1. Negotiate and sign a supply agreement. 2. Put a relevant paper trail in place to evidence our ability and willingness to launch. We will notify Lundbeck and expect to be injuncted well before any supply actually takes place. 3. Case Preparation. 4. Resolution to put Lundbeck on notice of our intention to launch (see above).”
“16. The Specific Mechanism is to be found in Chapter 2 to Annex IV of the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia or Slovakia to the European Union. The Accession was signed in Athens on16th April 2003 . It provides: 2. COMPANY LAW Treaty establishing the European Community: Part Three, Title I Free Movement Of Goods SPECIFIC MECHANISM With regard to the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or Slovakia, the holder, or his beneficiary, of a patent or supplementary protection certificate for a pharmaceutical product filed in a Member State at a time when such protection could not be obtained in one of the abovementioned new Member States for that product, may rely on the rights granted by that patent or supplementary protection certificate in order to prevent the import and marketing of that product in the Member State or States where the product in question enjoys patent protection or supplementary protection, even if the product was put on the market in that new Member State for the first time by him or with his consent. Any person intending to import or market a pharmaceutical product covered by the above paragraph in a Member State where the product enjoys patent or supplementary protection shall demonstrate to the competent authorities in the application regarding that import that one month's prior notification has been given to the holder or beneficiary of such protection. 17. Although it is part of an international treaty, the Specific Mechanism has effect in the United Kingdom as a result ofs2(1) of the European Communities Act 1972 which provides that: (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies. 18. The expression ‘the Treaties’ is defined insection 1 of the 1972 Act so as to include the 2003 Act of Accession and thus the Specific Mechanism, as part of the treaty, is effective in law without further enactment. 19. Essentially the Specific Mechanism means that certain UK patents (essentially product claims) can be used to prevent parallel imports from (in this case) Poland if the patent was filed at a time when Polish law did not permit that sort of protection. In that respect it acts to override the usual consequences of a patentee putting product onto the market in a Member State.”
“So it works like this. We have a supply agreement with Teva. Teva delivers to Lexon. Lexon repackage. Lexon delivers to Resolution (Lexon don’t wish to distribute for obvious reasons – we will have our licence by that time.) Resolution distributes.”
“How long can it take for your own lawyers to complete the argument between themselves? You’ve had since March 2012 to think about this, which is when I first contacted Teva.”
“Privity for this purpose is not established by having ‘some interest in the outcome of litigation.’ So far as they go, I think these authorities go some way towards supporting the contention of Mr Jacob that the doctrine of privity for these purposes is somewhat narrow, and has to be considered in relation to the fundamental principle nemo debet bis vexari pro eadem causa.”
“This is difficult territory: but I have to do the best I can in the absence of any clear statement of principle. First, I do not think that in the phrase ‘privity of interest’ the word ‘interest’ can be used in the sense of mere curiosity or concern. Many matters that are litigated are of concern to many other persons than the parties to the litigation, in that the result of a case will at least suggest that the position of others in like case is as good or as bad as, or better or worse than, they believed it to be. Furthermore, it is a commonplace for litigation to require decisions to be made about the propriety or otherwise of acts done by those who are not litigants. Many a witness feels aggrieved by a decision in a case to which he is not party without it being suggested that the decision is binding upon him. Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase ‘privity of interest’. Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa. Third, in the present case, I think that the matter may be tested by a question that I put to Mr. Skone James in opening. Suppose that in the Denne action the plaintiff, Miss Gleeson, had succeeded, instead of failing. Would the decision in that action that Wippell had indirectly copied the Gleeson drawings be binding on Wippell, so that if sued by Miss Gleeson, Wippell would be estopped by the Denne decision from denying liability? Mr. Skone James felt constrained to answer Yes to that question. I say “constrained” because it appears that for privity with a party to the proceedings to take effect, it must take effect whether that party wins or loses. … In such a case, Wippell would be unable to deny liability to Miss Gleeson by reason of a decision reached in a case to which Wippell was not a party, and in which Wippell had no voice. Such a result would clearly be most unjust. Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicions. A defendant ought to be able to put his own defence in his own way, and to call his own evidence. He ought not to be concluded by the failure of the defence and evidence adduced by another defendant in other proceedings unless his standing in those other proceedings justifies the conclusion that a decision against the defendant in them ought fairly and truly to be said to be in substance a decision against him.”
“There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening, and it was because of the existence of this practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by someone else in the same interest, he should be bound by the result, and not be allowed to re-open the case. That principle is founded on justice and common sense, and is acted upon in courts of equity where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re-opened.”
“All three defendants were joint tortfeasors, having acted in breach of the duty of confidence in relation to the confidential information imparted to them and in breach of the plaintiffs' copyright in the cutting patterns for the vest. The judgment against them was joint and several. If the Waites' action to set aside Costello J's judgment had succeeded, that judgment would have been set aside in toto, not just against the Waites; it obviously could not stand. Even if (which I do not accept) the judgment against Mr McLeod did not automatically fall in the event of the Waites' succeeding, it is plain that in the English proceedings the plea of estoppel or abuse of process would have prevented the plaintiffs pursuing the claim on Costello J's judgment against Mr McLeod. Mr McLeod was well aware of those proceedings. He could have applied to be joined in them, and no one could have opposed his application. He chose not to do so and he has vouchsafed no explanation as to why he did not. Mr Swift says he was not obliged to do so; he was not obliged to go to a foreign jurisdiction; he could wait till he was sued here. He speaks as if Mr McLeod was required to go half-way round the world to some primitive system of justice. That is not so. He had to go to Dublin, whose courts, as the judge said, are perfectly competent to deal with this matter. Moreover, it was a process that was good enough for the Waites. Instead, he was content to sit back and leave others to fight his battle, at no expense to himself. In my judgment that is sufficient to make him privy to the estoppel; it is just to hold that he is bound by the decision of Egan J.”
“If that be the only test, then there can be no privity between the relevant parties in this case as no party except GI had any legal interest in the U.S. patents. It is not possible to have in mind all the circumstances where privity of interest may arise and therefore it would not be right to try to formulate a definition. Each case has to be decided in light of its particular facts. However, it will only be where the person sought to be estopped has the same interest or an interest which has a sufficient degree of identification with that interest, so as to require that the decision should bind the other party in the second action, that the court will hold that there is privity of interest.”
“(1) Was Kirin-Amgen a privy of Amgen for the purpose of the US 008 action? … Kirin-Amgen was a joint venture company formed by Amgen and Kirin-Amgen. It was set up to exploit Amgen's EPO technology. On October 27, 1987, US 008 was assigned to Amgen to enable it to take proceedings in its own name. Thereafter Kirin-Amgen had no interest in the U.S. patent, nor did it have any direct interest in the outcome of the litigation. It had an indirect interest because the assignment did not affect Amgen's obligation to pay royalties. Thus failure in the action would most likely have affected Amgen's ability to exploit its rights in the USA and therefore would have resulted in a reduction of royalties paid to Kirin-Amgen. Mr Watson submitted that the close relationship between Amgen and Kirin-Amgen and the fact that Kirin-Amgen still had to pay royalties provided a sufficient interest. Mr Thorley,Q.C. who appeared for the respondents submitted that was not a sufficient interest to amount to privity of interest. I think he is right. Kirin-Amgen had an interest in the outcome of the U.S. litigation in that failure would cause damage, but it had no legal interest in the outcome of the patient litigation. Its sole concern was a commercial one. That does not provide a sufficient degree of identification between it and Amgen, particularly when it is appreciated that the cause of action and the proprietary right relied on in the two actions are different. Failure by Amgen on certain issues in the U.S. proceedings could damage Kirin-Amgen, but it would not be just to hold it to those failures when litigating its patent in Europe. (2) Was Ortho a privy of Amgen for the purpose of US 008? Ortho, by an agreement of September 30, 1985, became exclusive licensees in the USA in respect of certain indications for rEPO and therefore had an interest in the outcome of the U.S. litigation. Mr Watson submitted that that interest made them a privy of Amgen. He drew attention to litigation in California in which GI had sued Ortho for infringement of US 195. He submitted that that demonstrated that Ortho were in the same ‘camp’. No doubt Ortho are in the same ‘camp’, but that does not provide privity of interest with Amgen. Something more is needed. … The relationship between Ortho and Amgen, as contained in the agreement between them, does not mean that Ortho had privity of interest with Amgen in the litigation relating to US 008. Their interest was commercial. There was not sufficient identification between them to make a decision against Amgen in the U.S. proceedings binding against Ortho in the English proceedings.”
“41. Mr Griffiths was however on much firmer ground, in my view, in submitting that there was neither sufficient identity of interest between Mr and Mrs Marks nor sufficiently informed consent on the part of Mrs Marks to stand back and let her battle be fought by her husband. There was obviously a degree of common interest in persuading the master that the house belonged to the Chanick Trust, because that outcome held out the best prospect of the house being preserved as a family home …. And a husband who is facing insolvency may wish to prefer his wife's proprietary claims to his own. Nevertheless Mr Marks, Mrs Marks and the trustees all had competing financial interests, as would have become immediately apparent if Skyparks had proceeded (as it might have done) to make Mr Marks bankrupt at the same time as pursuing the charging order. 42. The judge described the circumstances of this case as similar to those of House of Spring Gardens v Waite. But to my mind there are significant differences. In that case WW, SW and McL were joint tortfeasors (and probably also conspirators). Their interests were identical and they were jointly and severally liable for enormous damages. McL not only knew about the Irish proceedings alleging fraud but actually pleaded them as a defence in the English action. His decision not to join in the Irish proceedings was deliberate and he offered no explanation of it (see the observations made by Stuart-Smith LJ at pp.253-4). 43. The evidence of Mrs Marks (which the judge seems to have accepted on this point) was that she knew of the master's decision at about the time when it was made and that she was told not to worry because there was to be an appeal. She (unlike McL) had had no previous involvement in the litigation and there is no suggestion that she took (or was at any time before August 1999 advised to take) independent advice. Had she (or the trustees) applied to be joined as parties at the stage of the appeal to Sullivan J, they might well have been met by the objection that Master Murray envisaged that they (or at any rate the trustees) would have a chance of being heard in the Chancery Division.”
“It follows that Mr Powell is not precluded by these principles from claiming good title to the Rallye, which he purchased before the date of the judgment in question. He can only be precluded from asserting good title by reason of the wider principles suggested in the judgment of Sir Robert Megarry V-C in Gleeson v J Wippell & Co Ltd[1977] 1 WLR 510 and the approval by Stuart Smith LJ in House of Spring Gardens v Waite[1991] 1 QB 241 of the citation from Lord Denning in Nana Ofori Atta II v Nana Abu Bonsra II[1958] AC 95 . Whatever may be said about the position of Mr Etherington, Mr Heapy who gave evidence in the earlier proceedings, and Mr Storey it has never been suggested that Mr Powell stood by in the knowledge of the proceedings, let alone took any part in them. On the other hand, it is clear from the judgment of Judge O'Rorke, that Mr Wiltshire knew full well that by the time his claim came to trial, the Rallye was in the possession of Mr Powell. He took no steps to join Mr Powell in the proceedings nor did he take any steps in relation to Mr Powell to protect his claimed ownership in the aircraft. It is a pity that Judge O'Rorke did not indicate to Mr Wiltshire that it would be necessary to join Mr Powell in the proceedings in order to ensure that the issues could be fully and properly litigated in those proceedings. I can see no reason why, in those circumstances, justice requires the court to consider Mr Powell to be bound by that earlier judgment on any of the principles to which we have been referred…. ”
“As stated above, the basic rule is that, before a person is to be bound by a judgment of a court, fairness requires that he should be joined as a party in the proceedings, and so have the procedural protections that carries with it. This includes the opportunity to call any evidence he can to defend himself, to challenge any evidence called by the claimant and to make any submissions of law he thinks may assist his case. Although there are examples of cases in which a person may be found to be bound by the judgment of a court in litigation in relation to which he stood by without intervening, in my judgment those cases are illustrations of a very narrow exception to the general rule. The importance of the general rule and fundamental importance of the principle of fair treatment to which it gives expression indicate the narrowness of the exception to that rule.”
“104 So far as joint liability is concerned, both Perini and PCMC refer to a decision of this court (which went to the House of Lords, but not on the point at issue here), Sabaf v Meneghetti and MFI[2003] RPC 14 , where, at paragraphs 58-59, the Court of Appeal rejected the contention that the supply of infringing goods from abroad into this country was sufficient to fix the supplier with liability even where the supplier ‘knew that [the goods] were going to be imported into the UK’. The supplier in that case had ‘merely been acting as a supplier of goods to a purchaser, which was free to do what it wanted with the goods’. Peter Gibson LJ said that, in order to be liable, the alleged joint tortfeasor must have ‘been so involved in the commission of the tort as to make himself liable for the tort’, and that he must have ‘made the infringing act his own’. While I agree with the decision, I must confess to finding the reasoning rather circular, which is not surprising as the circumstances in which joint liability arises are difficult, probably impossible, to define fully satisfactorily in abstract. 105. At least to my mind, the test propounded by Mustill LJ in an earlier patent case, Unilever v Gillette[1989] RPC 583 , 608–609, is rather more helpful in the present case. At the end of a brief analysis of the principles (quoted by the Judge at[2009] EWHC 1929 (Pat) , paragraph 177), Mustill LJ said that it was ‘enough if the parties combined to secure the doing of acts which in the event prove to be infringements’. Merely exporting a machine from another country to a third party in the UK, even helping to instal the machine in the third party's premises in the UK, would not, at least in ordinary circumstances, amount to such an act, as it is the use of the machine (which, in that case at least, was a matter entirely for the third party) which constitutes the tort.”
“The earlier cases are concerned with the liability of a seller of physical goods for infringements carried out by his purchaser with those goods. They establish that the seller is not a joint-tortfeasor in two circumstances: (a) where the goods he sells are not themselves infringing but can be used by the ultimate consumer to make infringing goods. This is so even if the seller knows that many ultimate consumers will do just that. Even in such a case the choice as whether or not he will infringe is made by the consumer alone and there is no common design to infringe – see the passage from the speech of Lord Templeman in CBS v Amstrad cited by Arnold J at [348]; and (b) where the seller of infringing goods is abroad and is not himself responsible for the importation of the goods, as where under a c.i.f. contract the property passes abroad and the carrier is the buyer's agent not the seller. That remains so even if the overseas seller acts as the buyer's agent in concluding the contracts of freight and insurance. Only the buyer infringes in the jurisdiction, see Meneghetti. As Mr Mellor put it ‘control ends at the factory gate’.”
“As Ms Anderson QC rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]. iii) In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman. iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]. v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 . vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 . vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“I derive from these authorities the following propositions which have a bearing on the application before me: (i) the court has jurisdiction under rule 24.6 to make an order which is tantamount to an order for security for costs; (ii) that jurisdiction extends to requiring someone advancing an unpromising claim to secure the defendant’s costs; (iii) before ordering security for costs in any case, the court should be alert and sensitive to the risk that by making such an order it may be denying the party concerned a right of access to the court; whether or not the person concerned has raised or can raise the money will always be a prime consideration; (iv) the court has a wide discretion to ensure that justice is done in any particular case; (v) relevant considerations, beside the ability of the person to pay, include his conduct of the proceedings and the apparent strength of his case; (vi) a party only becomes amenable to an adverse order for security under rule 3 once he can be seen either regularly to be flouting proper court procedures or orders or otherwise has demonstrated a want of good faith, that is to say a will to litigate a genuine claim or defence as economically as reasonably possible in accordance with the overriding objective; (vii) likewise, an order for security for costs would not be appropriate in every case where a party appears to have a somewhat weak claim or defence; (viii) exorbitant applications for summary judgment in misguided attempts to obtain conditional orders providing security for costs are not to be encouraged; (ix) the occasions when security for costs is ordered solely because the case appears weak may be expected to be few and far between; (x) it would be wrong to encourage litigants to regard rule 3.1 as providing a convenient means of circumventing the requirements of Part 25 and thereby providing a less demanding route to obtaining security for costs. When the court is asked to consider making an order under rule 3.1(3) or 3.1(5) which is or amounts to an order for security for costs or when it considers doing so of its own motion it should bear in mind the principles underlying rules 25.12 and 25.13. In my judgment, the court should also bear this principle in mind when considering whether to make a conditional order under rule 24.6.”