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You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Leo Pharma A/S & Anor v Sandoz Ltd [2010] EWHC 1911 (Pat) (27 July 2010) URL: http://www.bailii.org/ew/cases/EWHC/Patents/2010/1911.html Cite as: [2010] FSR 41, [2010] EWHC 1911 (Pat) |
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CHANCERY DIVISION
PATENTS COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
LEO PHARMA A/S (2) LEO LABORATORIES LIMITED |
Claimants/Respondents |
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- and - |
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SANDOZ LIMITED |
Defendant/Applicant |
____________________
____________________
Henry Carr QC and Andrew Lykiardopoulos (instructed by Simmons & Simmons) for the Claimants/Respondents
Hearing date: July 19th 2010
Crown Copyright ©
Mr Justice Floyd :
"The Defendant shall pay to the Claimants any sums found due on the taking of said inquiry into damages or account of profits together with interest at the judgment rate (being 8%) from the date of this Order."
"6. All issues concerning the Claimants' claim to have delivered up products … be stayed until after the Appeal in this action and any appeal therefrom"
7. All issues concerning the Claimants' claim to recover damages or at their option an account of profits including interest be stayed until after the Appeal in this action and any appeal therefrom" (emphasis supplied).
"17 (a) (having spoken with [leading counsel]) it [i.e. paragraph 9] was never considered or discussed in the emails that passed between counsel following the post judgment hearing. Both [leading counsel] and [junior counsel] (who I have also spoken to) also confirm that they have no knowledge or recollection of discussing the issue of interest on damages with counsel for Leo.
(b) It was never considered or discussed in any exchanges that my firm had with counsel following the post judgment hearing.
(c) It was never the subject of any correspondence with [the solicitors for Leo] following the post judgment hearing.
(d) [Leading counsel] gave no indication to [counsel for Leo] that Sandoz's objections to the judgment interest part of the order had been withdrawn.
18. In short, the language of paragraph 9 was not ordered, agreed or discussed. To the contrary, the language proposed by Leo was the subject of an objection by Sandoz. Its inclusion in the Order is clearly an error."
"(1) The court may at any time correct an accidental slip or omission in a judgment or order."
"In the present case the only issue raised on the cross–appeal was whether the restriction placed by the judge was appropriate. At no time was that part of the judge's order that required Bristol Myers to pay the defendants' costs challenged and it was not the intention of this Court to alter that part of the order. The intention of this Court was to remove the restriction; not to alter the general right to costs that had been ordered. Thus the correct order allowing the cross-appeal should have left the part of the order of the judge which was not challenged in the form in which it existed."
"The slip rule allows the court to correct an "accidental" error or omission. Was the form of the cross-undertaking an accidental error? At first blush the answer must be "No". It was a cross-undertaking deliberately given in the form in which it was intended to be given. It was embodied in an order settled by junior counsel for each party; and approved by the judge."
"… if the Practice Direction had been drawn to the attention of the judges who granted the interim injunctions, I do not feel able to say with confidence what cross-undertaking they would have required; or GSK would have been willing to give. As I have said, I do not consider that at the time these injunctions were granted, it would have been implicit in any application for an interim injunction that the form of undertaking in the Practice Direction was being offered; and even if it was, any implied offer must, in my judgment, have been displaced by the express offer that was accepted both by the Defendants and by the court. If I were now to amend the form of the cross-undertaking, I would be retrospectively imposing on GSK an undertaking that they did not give; and could not have been made to give."