Andrew Lykiardopoulos QC appeared as junior counsel for Les Laboratoires Servier and Another, in this Supreme Court decision.
The appeal related to the applicability of the defence of illegality to absolve liability for payment of a cross-undertaking in damages. The undertaking was given for an injunction relating to a pharmaceutical patent which was later found to be invalid and not infringed. Absent the injunction, the product would have been manufactured in Canada. Such manufacture would have infringed Servier’s Canadian patent rights. The issue arose whether the claim for damages under the cross-undertaking in the UK was in fact founded upon what would have been an illegal act (patent infringement in Canada) and ought therefore be barred.
Arnold J held that the claim was barred. The Court of Appeal held that it was not. For different reasons, the Supreme Court agreed with the Court of Appeal that the illegality defence did not apply. Giving the leading judgment, Lord Sumption held that the defence of illegality does not extend to include illegality outside of criminal or quasi-criminal offences which engage the public interest. The defence does not extend to include tortious wrongs (other than those of which dishonesty is an essential element) such as patent infringement.
Andrew Lykiardopoulos QC was instructed by Bristows LLP.