Apotex Europe Ltd & Ors v Smithkline Beecham Plc & Anor

I have an application before me in an action in which Apotex Europe Limited and two other companies are the claimants, and SmithKline Beecham Plc and GlaxoSmithKline UK Limited are the defendants. The action relates to the alleged infringement and validity of a patent relating to Paroxetine Hydrochloride. There has already been an interlocutory injunction granted at the behest of the defendants against the claimants and the trial is due to come on in June.

In the course of the preparation for the trial, the claimants have carried out certain experiments, some seven in total, and the defendants have asked for a repetition of three of them. A dispute has arisen very recently as to the way in which the repetition of those three experiments should be conducted. The claimants, who will have to conduct them, have put forward a timetable with which the defendants did not agree. Initially, the claimants proposed that the experiments should be run in sequence. This was not acceptable, or was thought to be wasteful by the defendants, and in a letter of 6 March 2003, the patentees through their solicitors, Simmons & Simmons, wrote a letter which contains the following:

“Whilst we appreciate that equipment requirements may make running all three experiments in parallel difficult, we do find it astonishing that you are unable to conduct these experiments in a more time efficient manner. If, as is currently suggested, the three experiments are run end to end, the total time to complete them will be in excess of two weeks, even if the first and last days of consecutive experiments overlap.

We note that your Mr. Thornham indicated that your clients’ original timetable for experiments was prepared to incorporate all seven of your clients’ experiments. As the repeats now only need to incorporate three of the experiments, we assume that some of the equipment which was to have been used in the other four experiments may be freed up. It would considerably reduce the time and cost required by both parties if the repeats could be ‘telescoped’, and run in parallel wherever possible.

You agreed to review the timetable and let us have an amended version by fax later today. We would greatly appreciate it if, in view of the fact that less than half the experiments now need to be conducted, your client could give some thought could [sic] to running at least parts of the remaining three experiments in parallel.”

That was 6 March. The very next day the current application was launched by the defendants seeking an order requiring the claimants to repeat the experiments on a timetable which would involve them all being run at the same time. This has produced three rounds of evidence. Mr. Simon Cohen who is a partner at Taylor Wessing, who has conduct of this action on behalf of the defendants, has given evidence that the scientist on the claimants’ side, who is going to be in charge of running the experiments, has stated that it was just not possible to run all three experiments simultaneously. A more collapsed timetable was offered which would involve some overlap but would achieve a reduction in the overall duration of the experiments to some 10 days. That has not satisfied the defendants who have come to court today, represented by Mr. Andrew Waugh QC, to ask the court to force the claimants to run the experiments entirely in parallel.

In my view, this is a wholly unreasonable application to make to the court. Parties to High Court litigation are expected to conduct themselves with some modicum of give and take and not to run to the court every time that something not entirely to their liking is proposed or done by their opponents. I cannot conceive of this application being justified. The difference between the parties, as it is now before me, amounts to some two days of time to be taken up in conducting experiments with the claimants’ scientists saying that they cannot reasonably foreshorten the time taken to repeat. To bring an application like this before the court with leading counsel on one side, junior on the other and representatives from two major firms of solicitors is utterly disproportionate to what is involved. If, as Mr. Waugh argues, these experiments could have been repeated in eight days rather than 10 days, no doubt that is something which could have been dealt with on an assessment of costs at the end of the trial, assuming, of course, that the costs are in favour of the claimants. As it is, in my view, this application is misconceived.

I decline to make the order sought by Mr. Waugh.