Glaxo Wellcome & anor v Sandoz & ors [2019] EWHC 1528 (Pat)

12 June 2019

Martin Howe QC, Iona Berkeley and Ashton Chantrielle appeared for the First to Fifth Defendants in this pre-trial review, in passing off proceedings relating to the colour and get-up of the Claimants’ Seretide combination inhaler.

The principal issue to be determined at the pre-trial review was the Defendants’ application to exclude certain parts of the Claimants’ evidence, said by the Claimants to be trade evidence concerning Doctors and Pharmacists practices. The Defendants objected to the fact evidence in issue on the grounds that it constituted expert evidence, opinions or speculation on matters outside the witnesses’ own knowledge, commentary on documents, argument, and/or opinion on the ultimate question. Three trade witness statements, said to be pseudo-expert statements, were objected to in their entirety. An internal witness statement was also objected to on the ground that it in fact constituted an expert report. In other trade witness statements and internal witness statements, certain passages were identified and said to be inadmissible.

The three trade witness statements and one internal witness statement which were objected to in their entirety were found by Arnold J to in reality constitute expert reports which the Claimants did not have permission to adduce. These witness statements were excluded, save for certain discrete sections of two of the trade witness statements. These were allowed to be admitted as permissible fact evidence.

Arnold J further considered each of the discrete passages objected to, ruling on their admissibility. Certain of the passages were excluded on the basis of one or more of the Defendants’ objections.

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