B e f o r e :
| (1) HOLLISTER INC.
(2) DANSAC A/S
|- and -
|MEDIK OSTOMY SUPPLIES LIMITED||Defendant|
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MR. R. HACON (instructed by Sloan Plumb Wood LLP) appeared on behalf of the Defendant.
Crown Copyright ©
99. Medik has a sister company called CliniSupplies and Mr Watts had allowed a cross-charge between the businesses to cater for repackaging carried out by staff actually employed by CliniSupplies. I have real doubt that this charge for CliniSupplies staff is allowable. The volume of repackaging work did not vary materially over the period and yet in 2006 and 2007 Medik had spare capacity to assist CliniSupplies. On that basis it seems to me that a fair inference to be drawn is that Medik itself could handle all its repackaging work. On that basis I doubt there is any reason to attribute any CliniSupplies costs to the relevant business in this case. On the other hand part of taking a defendant as one finds it involves accepting that even if a cost was unnecessary, if it was incurred then it falls to be considered.
100. A real problem is that the way in which matters were handled between CliniSupplies and Medik was in fact by a series of cross-charges in the company accounts which were (in the words of Medik's Financial Controller Mr Pathmanathan) performed on an arbitrary basis. Mr Watts sought to determine what the correct cross-charges should have been for CliniSupplies. Although I can understand why that might have been attempted, it seems to me that it runs counter to the principle that one takes the defendant as you find them. In fact what were charged were arbitrary cross-charges. Those are not properly attributable since they were arbitrary and once they are put to one side, it seems to me to be wrong in principle to invent actual charges which were not in fact employed and then deduct those.
101. I will not allow CliniSupplies repackaging staff costs.
CliniSupplies general staff
103. There was also a suggestion that other CliniSupplies staff costs could be apportioned. This issue stands or falls with the CliniSupplies repackaging staff. I will not allow it either."
MR. HACON: Your Honour, something does occur to me - but I have not had a chance to take instructions and I do not think I can do it in a moment. I may be asked to seek permission to appeal in relation to what I think is a point of law - that is to say, the assessment of costs on an inquiry - whether the principles in Gibbon can be applied. I do seek permission ----
JUDGE BIRSS: No. I am afraid I am not giving you that permission. If you have identified a point of law by the time you get to the Court of Appeal, you can explain it to the Court of Appeal.
MR. HACON: But I think it should be recorded that you have refused permission on that point.
JUDGE BIRSS: Gentlemen, will you produce a signed minute of order. Me saying "Permission on Boehringer II" sufficient?
MR. FERNANDO: Yes, I think so.
JUDGE BIRSS: You know what it is. You will draft a minute of order. If you cannot agree, I will resolve it in writing.