Friday 22 May 2015

£27 million award for wrongful interim relief upheld

Recommended reading
for patent trial judges?
AstraZeneca AB & Anither v KRKA dd Novo Mesto & Another [2015] EWCA Civ 484 is a major ruling delivered yesterday on the calculation of damages from the Court of Appeal, England and Wales (Lords Justices Longmore, Kitchin and Floyd). This is an unusual instance of two specialist patent judges sitting together in the three-judge panel: one is usually enough. In the event Kitchin LJ delivered a unanimous judgment, so we weren't treated to display of duelling between the two virtuoso patent judges.

The question before the Court of Appeal was whether, in awarding damages of over £27 million to pharmaceutical companies for their losses resulting from an interim injunction restraining the launch of a non-infringing generic version of esomeprazole for a year, the trial judge -- Mr Justice Sales (not a specialist patent judge), was in error. Sales J's decision is noted on PatLit here. The point of the matter was that, but for the injunction, those companies would have entered the market for esomeprazole with full force and effect, and the sum awarded took account of the success they would have achieved and the profits they would have made, subject to an appropriate 20 per cent discount to reflect the various uncertainties inherent in that assessment. The award of £27 million was the largest ever made by the Patents Court on an enquiry of damages of this kind.

Essentially, said the Court of Appeal, Sales J had got it right and had was entitled to reach the conclusion which he had done, on the basis of the evidence before him. The assessment of damages was compensatory, not punitive, and while some of the reasoning was "concise" it was not (as counsel for the appellants had suggested) "wholly inadequate".

This blogger welcomes more concise reasoning in the decisions of trial judges. They are easier to follow and, in his opinion, less likely to result in an appeal since there's not so much rope with which trial judges can hang themselves.

1 comment:

Anonymous said...

"less likely to result in an appeal since there's not so much rope with which trial judges can hang themselves"

How is that possibly in the interests of justice? "Judgments without full reasoning are to be welcomed as they enable to judges to make mistakes that cannot be appealed because the lack of explanation renders their errors are oblique rather than clear."