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England and Wales High Court (Patents Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Eli Lilly & Co & Anor v 8 PM Chemists Ltd [2007] EWHC 2768 (Pat) (22 November 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Patents/2007/2768.html
Cite as: [2007] EWHC 2768 (Pat)
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CHANCERY DIVISION
PATENTS COURT
Strand. London. WC2A 2LL |
||
B e f o r e :
Between:
____________________
| (1) ELI LILLY AND COMPANY (2) LILLY ICOS LLC |
Claimants |
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| - and - |
||
| 8 P.M. CHEMISTS LIMITED |
Defendant |
____________________
6th Floor, 12-14 New Fetter Lane, London EC4A 1 AG.
Telephone No: 020 7936 6000. Fax No: 020 7427 0093
DX410LDE info@martenwalshcherer.com
MR. JUSTIN TURNER (instructed by Messrs. Fasken Martineau Stringer Saul, London Wl) for the Defendant
____________________
Crown Copyright ©
- The first matter on which I have to give a ruling in this application is the matter of the admissibility of evidence. I will try to set out shortly the manner in which the point arises.
- This case concerns the bringing into the jurisdiction of a quantity of pharmaceuticals. The pharmaceuticals in question are pharmaceuticals in respect of which the trade mark is owned by one or other of the claimants. The goods were shipped from Turkey along with goods of three other pharmaceutical companies.
- The case started when Customs saw the goods when they arrived in the country and considered that some of them might be counterfeit. An inspection took place. As a result of the inspection the goods were determined not to be counterfeit. The inspection took place by a photographer instructed on behalf of all four sets of pharmaceutical companies and therefore his instructions included instructions from the two claimants in this case; the other three pharmaceuticals groups are Pfizer, Merck and AstraZeneca.
- The photographs were supplied to the solicitors acting for the claimants in this case, who are also the solicitors acting for Pfizer. Photographs, as I understand it, were also taken on that occasion by someone acting on behalf of the defendant.
- This application concerns only Eli Lilly branded goods. However, in the course of the evidence which has been deployed in this case reference has been made to material relating not only to the Eli Lilly goods but also to material relating to the goods bearing the brands of the other three pharmaceutical groups. Those references are short, but at least one of them may relate to a not insignificant matter.
- Mr. Turner, who appears for the defendant in this case, objects to the admissibility of those evidential references. He objects to them on two bases: first, that they involve a reference to documents and matters which fall within CPR 31. He says they are therefore caught by the bar on the use of the documents and other matters disclosed for any purpose other than the proceedings in which they are disclosed (that is CPR 31.22). He also says that the use of the material in these proceedings is a breach of the undertakings given by each of the other three drug groups, which was that material obtained on the inspection would not be used for any purposes other than the purpose of proceedings in which inspection was obtained, without the permission of the court.
- I should say at this stage that the inspection took place pursuant to orders made by this court in four separate sets of proceedings, one for each of the pharmaceutical groups, or at least that is what I understand to be the position.
- I am not convinced by Mr. Turner's submission that these are matters caught by CPR 31.22. Even if I am wrong about that, this court has a jurisdiction to release a party from the bonds of CPR 31.22 and Mr. Turner does not dispute that. However, if Mr. Turner is right in what he tells me about the source of these photographs, it may be that there is a case for saying that in regard to some of the photographs, and probably more clearly some of the other information to which Mr. Turner objects, the provision of those matters would be a breach of the undertaking given by each of the three drug companies. However, in that event again the court has jurisdiction to release the parties from the undertaking and to allow the evidence.
- Mr. Turner emphasises, and I accept, that he is not taking a tiresome technical point about this. He says there is a real substantial and practical effect behind his application. That is that his client has not had an opportunity to deal with the significant evidential matters which appear in the disputed items, or at least in two of the three currently disputed items. Although, therefore, his point about admissibility is the peg on which he hangs his submissions, the real burden of his complaint is that he has not had a chance to deal with the evidential material.
- I should describe the material very briefly. First, there is some material in paragraph 9 of the second witness statement of Mr. Kevin Moore. That is material relating to one particular consignment of branded drugs, which are not the drugs of Eli Lilly; the drugs are identified as having a UK recipient. I will not identify him for the purpose of this judgment, both because it is unnecessary to do so and because, in fact, I have imposed a confidentiality restriction on the identity of any individual recipients of the drugs which are the subject of this litigation.
- In fact, on further analysis and pressing the parties, it seems to me that I do not need to deal with this point because the evidence in question only goes to a claim which Mr. Fernando, on behalf of the claimant, is not making at this stage of these proceedings. I will therefore say no more about that; it will not form any real part of the evidence in this case.
- The other two items are contained in paragraphs 11 and 18 of the same witness statement. In paragraph 11 Mr. Moore refers to the photographs of invoices taken in this case and makes an observation about a number of them which do not include an official prescription receipt and which do not have an Rx number (the Rx number being a prescription number). He attaches some copies of the photographs to his witness statement. Some of those photographs relate to the products of the other three groups who are not claimants in this action. He is therefore using, as it were, their material.
- A similar point is made about paragraph 18 where Mr. Moore records an understanding from his counterparts at the other pharmaceutical companies that, in relation to a large number of them, there were no patient information leaflets with the product. He then makes an observation as to his suspicions as to whether or not those leaflets were removed. That is information which the representatives of those other pharmaceutical companies could only get from the inspection carried out on behalf of those pharmaceutical companies and is, therefore, information which is technically caught by the undertaking given in the order pursuant to which inspection was obtained.
- I accept Mr. Turner's argument for present purposes that the objected to material in paragraphs 11 and 18 is material which falls within the undertaking. That is probably clearer in respect of the paragraph 18 material than in respect of the photographs, because the photographs are a common source. However, it seems to me to be wholly unrealistic to treat that, first of all, as material which has no bearing on the matter in this case, and indeed Mr. Turner did not submit as much. What went on on a joint inspection of goods in respect of which a likely common complaint was made is obviously something in which the various drug companies have a common interest. The fact that they have that common interest is demonstrated by the fact that, when I made enquiries of representatives of each of the other three companies who were attending court today as observers, they all indicated for their part they had no objection to the material being used. Since at least in respect of the paragraph 18 matters they actually supplied to the claimants, that is not in the least surprising. They, therefore, have no objection to being released from their own undertaking.
- Mr. Turner, however, does object to the release from the undertaking in respect of this material and the necessary releases from the bonds of CPR 31.22. As I have indicated, his objection is on the grounds of practicality because his client has not had a chance to meet this evidence. He is supported in that from the second paragraph of the second witness statement of Mr. Vinesh Aggarwal, the director of the defendant. In that paragraph he observes that, although he has seen the second witness statement of Mr. Moore, and indeed other material, he has had little time to consider that material and responded only to matters which he considers are directly relevant to the action. Mr. Turner says that, if more time were available, his client would have met in more detail the material to which I have referred him, in particular the paragraph 18 material.
- Bearing in mind the urgency with which this matter has been brought on, as I understand it the urgency being that of both parties, bearing in mind the great lengths to which both parties have plainly gone in order to put material before the court (and I have a large volume of material) it is quite apparent to me that this is a matter of great importance to both parties. It is sufficiently important for me to continue to hear this matter and not to grant any adjournments so that further evidence can be put in, and indeed nobody has asked me for an adjournment. Mr. Turner's application is not for an adjournment; it is for the exclusion of material.
- In those circumstances, it seems to me that I should take a very practical approach to this matter. The material to which reference is made is plainly material which is relevant to this application. Although it refers to the material arising in respect of other actions, it is the defendant's own case that the activities in which the defendant has indulged are activities which extend beyond the goods of the claimants and into the goods of many other drugs companies, including, I assume, the three other drugs companies whose branded goods were in the possession of the defendant at the relevant date. What the claimants complain of is part of a pattern and of a course of trade which affects the goods of others. It is therefore relevant material.
- In my view, the only sensible course that I can adopt in relation to this evidence is to allow it in, and to that extent only to release the other drug companies from their undertakings in respect of the evidence in question. I shall therefore allow it in. It is, in a limited sense, now too late to object to it as material. Strictly speaking, the objection should have been taken earlier and, if Mr. Turner was going to be in difficulties, he should have asked for an adjournment. That is a very technical point because, in practical terms, and bearing in mind the dates on which there were hearings and service of witness statements in this matter, that would have been a course which would have been very difficult for him to take. Indeed, at the beginning of this case I encouraged the postponement of this question to the time when he made all his submissions rather than taking it at the outset; so it is only a very technical point. The practical answer is to allow the material in.
- However, I do take into account that his client takes the point that he has not had time to meet this material. In relation to the material in question, I shall treat it as being material of which there is evidence but which can be taken to be disputed for the purposes of an interim injunction application. I remind myself that this is an only an interim injunction application, or at least the main application is, even though Mr. Turner has his own application for defendant summary judgment.
- In those circumstances, the extent to which a court will actually treat something as being clearly established as opposed to being arguable is very limited. A large number of evidential matters in this case have only been established, if established at all, to the position of arguability rather than being clearly established, and I shall treat the matters the subject of Mr. Turner's objection as being matters which are taken to be traversed and therefore put in issue without holding against him that his client has not actually met those particular allegations. That seems to me to meet the practicalities of a proper view of the evidence and fairness and justice to Mr. Aggarwal. The most Mr Aggarwal could do if he were to have an opportunity to put in evidence would be to put in some evidence which he said clearly demonstrates that the points made in the witness statement are false. It is highly unlikely he would be able to demonstrate that beyond the point of arguability. The most he could therefore do would be to put those in issue and show the points are unestablished. At the moment they are merely arguable.
- That is the position I propose to adopt in relation to that evidence.
MR. JUSTICE MANN :