Warner-Lambert Company LLC v Sandoz GmbH & Anor, Court of Appeal - Patents Court, February 13, 2017, [2017] EWHC 216 (Pat)

Resolution Date:February 13, 2017
Issuing Organization:Patents Court
Actores:Warner-Lambert Company LLC v Sandoz GmbH & Anor
 
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Neutral Citation Number: [2017] EWHC 216 (Pat)

Case No: HP-2015-000049

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

PATENTS COURT

Rolls Building

Fetter Lane, London EC4A 1NL

Date: 13 February 2017

Before :

MR JUSTICE ARNOLD

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Between :

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Richard Miller QC and Tim Austen (instructed by Allen & Overy LLP) filed written submissions for the Claimant

Andrew Lomas (instructed by Olswang LLP) filed written submissions for the Defendants

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Draft 13 February 2017 12:49 Page 2

MR JUSTICE ARNOLD :

  1. On 21 December 2016 I dismissed an application by Sandoz to vary an interim injunction which I had granted against Sandoz by order dated 17 November 2015 for the reasons given in my judgment dated 21 December 2016 [2016] EWHC 3317 (Pat). It has subsequently been agreed between the parties that the costs of the application should be dealt with on paper.

  2. Warner-Lambert contends that costs should follow the event, and therefore Sandoz should be ordered to pay Warner-Lambert's costs of the application since Warner-Lambert was the successful party. Sandoz contend that costs should be reserved to the trial judge on the grounds that I accepted that there had been a material change circumstances since 17 November 2015, but upon reconsidering the balance of the risk of the injustice concluded that it favoured the continuation of the injunction without variation. In those circumstances Sandoz contend that there is no successful party and that it will only be possible to determine which is the successful party after trial. In support of this argument Sandoz rely upon the decision of the Court of Appeal in Desquenne et Giral UK Ltd v Richardson [2001] FSR 1.

  3. I entirely accept that the normal order where an interim injunction is granted upon the basis of an assessment of the balance of the risk of injustice is to reserve the costs to the trial judge for the reasons given in Desquenne et Giral, although the court retains a discretion to make a different order if the particular circumstances of the case warrant doing so (see Picnic at Ascot v Derigs [2001] FSR 2).

  4. I do not accept that it follows that the costs of Sandoz's application should be reserved. I made an...

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