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AstraZeneca AB & Anor v KRKA dd Novo Mesto & Anor [2015] EWCA Civ 484

Case Summary  |  Judgment  |  21 May 2015

 

This appeal related to an order for the payment of over £27 million pursuant to a cross-undertaking in damages made as a condition for grant of an interim injunction in respect of a generic formulation of the drug esomeprazole.

The Court of Appeal dismissed the appeal, confirming the largest award ever made by the Patents Court on such an inquiry. Kitchin LJ gave the lead judgment in the Court of Appeal holding that held that Sales J (as he then was) had been entitled to reach his findings in relation to the lack of an appropriate comparator, the evidence of NHS Medicine Managers as to sales in the counterfactual scenario where there was no injunction and an appropriate ‘uncertainty discount’. He held that Sales J had not wrongly attached weight to a particular witness’s estimate of the sales that would have been made.

The case gives guidance both as to the significant level of damages which can be awarded in such cases even where the period of the injunction itself is relatively short ([10 months])as well as considering the range of approaches which may be used in calculating the damages.

Daniel Alexander QC appeared as lead counsel for the Appellants/Claimants (‘AZ’) and Andrew Lykiardopoulos QC and Thomas Jones appeared for the Respondents/Defendants (‘KRKA’).

Daniel Alexander QC was instructed by Bristows LLP.
Andrew Lykiardopoulos QC and Thomas Jones were instructed by Innovate Legal.