In the Secretary of State for Health & Anor v Servier Laboratories Ltd & Ors [2019] EWCA Civ 1160, the latest chapter of litigation involving Servier’s branded perindopril drug, Coversyl, the Court of Appeal has unanimously dismissed an appeal against a decision of Mr Justice Roth to strike out the NHS’s claim for damages for loss caused by unlawful means.

 

The alleged loss was the higher price paid by the NHS for perindopril. The unlawful means were alleged misrepresentations made by Servier to the European Patent Office (EPO) and the English Courts in the course of obtaining its patent for the pharmaceutical drug and during the course of obtaining an interlocutory injunction to enforce the patent pending trial, which caused a delayed introduction into the UK of a cheaper generic version of the drug.

 

The Court of Appeal confirmed that the tort of causing loss by unlawful means required (among other things) that the alleged unlawful means had to affect the freedom of the third party to deal with the claimant. In this case, the “third party” were the EPO and the English court and, as there was no question of interference with their “freedom to deal” with the NHS (or indeed with anyone else), the claim fell outside the scope of that tort.

 

This judgment confirms that interference by the defendant with the liberty of a third party to deal with the claimant is an essential ingredient of the tort of causing loss by unlawful means. The decision provides a comprehensive analysis of the authorities related to the unlawful means tort; in particular OBG, which the court acknowledged as a binding precedent.

 

The next chapter in this litigation will be the mitigation trial, now listed to be heard in October 2019 and expected to last 22 days with numerous expert witnesses being called.

 

Our full article on this case will appear in the Journal of Intellectual Property Law & Practice.

 

Contact our Life Sciences team for more information.