GET AN INJUNCTION – PAY £27 MILLION IN DAMAGES: A POINT WORTH REMEMBERING

The judgment in AstraZeneca AB -v- KRKA dd Novo Mesto [2015] EWCA Civ 484 is one that should be read by anyone thinking of applying for an injunction and giving an undertaking in damages. The claimant obtained an injunction and gave an undertaking in damages. The claimant was subsequently ordered to pay £27 million in damages on the basis of that undertaking.

THE CASE

The claimant obtained an injunction preventing the claimant marketing a pharmaceutical. An undertaking as to damages was given. The injunction was later discharged. The defendant obtained an judgment on the basis of the undertaking for a sum in excess of £27 million. The claimant appealed but that appeal was unsuccessful.

KEY POINT

The central point here is that, in cases where an undertaking in damages is required, this case illustrates the need to inform the client of the significance (and potential size) of an undertaking in damages.

THE WITNESS EVIDENCE

The bare facts of the case are a salutary lesson in themselves.  However it is interesting to look at one passage in relation to the judge’s treatment of witness evidence.

  1. Mr Alexander also complains that the judge wrongly attached weight to the evidence of Mr Crosbie and, in particular, to his estimates of the market penetration that Consilient would have achieved in the counterfactual and the losses that the defendants have therefore suffered. Mr Alexander contends that these figures were inconsistent with Mr Crosbie’s own contemporary estimates and, in substance, no more than speculation. In that regard Mr Alexander referred us to the interruption by the judge of his cross-examination of Mr Crosbie on the first day of the trial (at pages 172 to 176):

“MR. JUSTICE SALES: All right. I am a little bit concerned that we are talking up time now on cross-examination of material which, strictly, probably is not admissible evidence. I am not going to make a ruling. But witnesses commenting on other evidence is not of assistance to the court, unless they are an expert; and Mr. Crosbie, very frankly, said he is not an expert.

MR. ALEXANDER: My Lord, the only reason I am doing it is because I do not want it to be said at some later stage, “Oh, you did not challenge the witness in relation to the fundamental assumptions that he is putting forward.” So, I do feel I need to challenge it, up to a point.

MR. JUSTICE SALES: Well, just on that, I do not consider that it is necessary for you to challenge this witness in relation to assumptions which are sought to be made good by other evidence from witnesses who can speak to the relevant facts where this witness cannot. I make that clear now.”

  1. Mr Alexander continues that, notwithstanding this interruption, the judge proceeded to rely upon and attach weight to Mr Crosbie’s evidence in reaching the findings he did at [74] of his judgment which I have set out above.
  2. I believe that these submissions mischaracterise the approach that the judge has taken. I think it is clear that he did proceed in precisely the manner he indicated that he would. He took Mr Crosbie’s evidence as an expression of the case that the defendants were advancing but not as evidence in support of it. For that the judge looked elsewhere and he found it in the evidence of the Medicine Managers. Indeed, he said in terms at [35] of his judgment that Mr Crosbie was not put forward as an expert witness or someone who had contact with PCTs and he therefore did not place weight upon the evidence about the market which he gave.

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