Vestergaard Frandsen A/S (now Called MVF 3Aps) v Bestnet Europe Ltd & Ors [2014] EWHC 3159 (Ch)

3 October 2014

Mark Platts-Mills QC, Tom Moody-Stuart and James Whyte appeared for Vestergaard Frandsen A/S and Others against George Hamer acting as part of the legal team for the Defendants, Bestnet Europe Ltd and Others. The action was for misuse of confidential information relating to the manufacture of insecticidal mosquito bed nets. A trial on liability had found that the manufacture and sale of certain nets (the first formula nets) had been a misuse of the confidential information, while other nets (the later formula nets) did not themselves represent a misuse but were derived from such misuse. This was the damages inquiry.
For the first formula nets, Rose J applied the principles in General Tire, awarding lost profit in respect of sales the Claimants would have made, and a “reasonable royalty” in respect of other sales. The reasonable royalty figure was found using the Force India F1 principles. The figure owed for these nets was US$335,419.
As to the later formula nets, there was no direct authority on the correct assessment of damages in respect of products derived from misuse. A two-fold approach was adopted: one head of damage should be a lump sum reflecting a quasi-consultancy fee; the second should compensate for sales made during the period of accelerated entry to the market provided by the misuse. Damages under the first heading were assessed at US$150,000, but on the facts there was no accelerated entry. The total due was therefore US$485,419.
Mark Platts-Mills QC, Tom Moody-Stuart and James Whyte were instructed by Field Fisher Waterhouse LLP.
George Hamer was instructed by McGuire Woods LLP

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