Generics (UK) Limited v Astrazeneca AB

On 28 April 2025 I handed down my trial judgment ([2025] EWHC 1012 (Pat)) finding the Patent and, therefore, the SPCs invalid. On that date there was a hearing at which I made an order containing declarations to that effect. I also made directions for written submissions on permission to appeal and on 2 May 2025 I granted AZ permission to appeal. On 28 April 2025 I also gave directions for determination of the question of whether there should be injunctions pending appeal. AZ’s applications for such injunctions were heard by HHJ Hacon, and he handed down his judgment on those applications on 28 May 2025 ([2025] EWHC 1339 (Pat)). The appeal from my order was expedited and heard by the Court of Appeal on 25-26 June 2025. On 16 July 2025 the Court of Appeal handed down its judgment rejecting AZ’s appeal against my order ([2025] EWCA Civ 903). On 31 July 2025 the Supreme Court rejected AZ’s application for permission to appeal.

At the hearing on 28 April 2025 I also directed that any remaining issues consequential on my judgment, including costs, be dealt with at a separate hearing. As a result of my unavailability in May 2025, and the parties’ understandable focus during May and June 2025 on the appeal and the applications for injunctions pending appeal, it was not possible to convene such a hearing during those months. Eventually, at my suggestion, the parties agreed that the remaining issues be dealt with on paper, and I made directions for evidence and submissions relating to those issues. The evidence and submissions were not complete until 30 July 2025. That explains why, unusually, I am not dealing with the costs of the first instance validity proceedings until after the Court of Appeal has delivered judgment on the appeal from my order and the Supreme Court has refused permission to appeal. The costs of the various applications for interim injunctive relief will be dealt with separately at a hearing in September 2025.

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order – CPR 44.2(2). In deciding what order to make as to costs, the court will have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded on part of its case even if it has not been wholly successful – CPR 44.2(4). The conduct of the parties includes whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue – CPR 44.2(5). The orders which the court may make include an order that a party must pay a proportion of another party’s costs – CR 44.2(6).

It was common ground that I should approach matters by asking: first, who has won; secondly, whether the winning party has lost on an issue which is suitably circumscribed so as to deprive that party of the costs of that issue; thirdly, whether it is appropriate and just to order that the winning party should also pay the losing party’s costs of that issue – see e.g. TQ Delta v ZyXEL [2019] EWHC 745 (Pat) at [23].

In relation to the second question, I was reminded of the observations of Lewison J in Cranway v Playtech [2009] EWHC 2007 (Pat) at [3] that there is a danger of too microscopic an analysis of the issues, and of Birss J in Unwired Planet v Huawei [2016] EWHC 410 at [5] that the level of granularity at which the matter is to be decided will vary from case to case. The Claimants also referred me to the observation of Arnold J in Elkamet v Saint-Gobain [2016] EWHC 3420 (Pat) at [21] that it is common in patent cases for parties running a successful squeeze argument to be awarded the costs of both limbs of the squeeze.

In relation to the third question, the Claimants referred me to Pigot v Environment Agency [2020] EWHC 144 (Ch) at [6] and Montres Breguet v Samsung [2022] EWHC 1895 (Ch) at [26] for the proposition that where a discrete issue on which the successful party lost was raised reasonably, it is unlikely to be deprived of its costs (whereas it is likely to be deprived of its costs if the issue was raised unreasonably). Pigot also emphasises that ultimately it is important to stand back and ask whether the costs order is in all the circumstances the right result – the order should reflect the overall justice of the case.

It is common ground that the Claimants are the winning party and that AZ should pay their costs save to the extent that there are suitably circumscribed issues on which the Claimants lost, or the costs are the subject of previous costs orders against the Claimants. AZ submits that there should be deductions from the Claimants’ costs to reflect (1) the costs of the classical obviousness case, (2) the costs of the extended disclosure exercise, (3) the costs of the trial listing applications and (4) costs relating to the amendments to the Grounds of Invalidity. The parties are agreed that I should reflect any deductions by means of percentage deductions from the Claimants’ costs.

As I recorded in my trial judgment at [5], by the time of trial the Claimants were advancing three grounds of invalidity of the Patent: (1) lack of inventive step and/or insufficiency by reason of lack of plausibility, (2) lack of inventive step and/or insufficiency by reason of lack of technical contribution over WO 128, and (3) that it was obvious, in the conventional sense, to arrive at dapagliflozin as a SGLT2 inhibitor from the disclosure of WO 128. The Claimants succeeded at trial on the first two grounds, but abandoned the third in their closing submissions.

AZ says that the Claimants should not recover the costs of the third ground, which the parties have referred to as classical obviousness, and that AZ should be awarded its costs of that issue.

The Claimants say that the classical obviousness case operated as a squeeze on AZ, given the similarities in the nature of the disclosures in the Patent and in WO 128. First, they say that it was advanced and maintained in case AZ contended for a greater technical contribution of the Patent, perhaps based on the CGK, than it ultimately did, in which case the Claimants say they would have been able to contend that the CGK would result in dapagliflozin being classically obvious. Secondly, they say that, unless they had run the classical obviousness case, AZ could have sought to promote the disclosure of WO 128 in an attempt to bolster its plausibility case.

As to the first point, it is not clear how, if AZ had contended for a greater technical contribution for the Patent than it did at trial, based on the CGK or otherwise, that could have led to dapagliflozin being classically obvious over WO 128. The Claimants would still have had to show that it was obvious, given the disclosure of WO 128, to arrive at dapagliflozin as a SGLT2 inhibitor. It is hard to see how more extensive CGK could have assisted the Claimants in that task.

As to the second point, AZ’s expert evidence took the line that the skilled person reading the Patent would understand that dapagliflozin had been tested and shown to have SGLT2 inhibitory activity. It took a similar approach with regard to WO 128, namely that the skilled person would understand that the compounds of the Examples (including the closest in terms of structure to dapagliflozin, Example 12) had been tested and shown to have SGLT2 inhibitory activity (see the passage from Prof. Potter quoted in [273] of my trial judgment). But that operated as a squeeze against AZ on the technical contribution aspect of the case, as explained in my trial judgment. It was not necessary to run classical obviousness to achieve that effect.

Indeed, it was notable that the Claimants did not cross-examine Prof. Potter on the classical obviousness case despite what he had said about the disclosure of WO 128. Nor did Dr Edwards suggest that if Prof. Potter was right about the disclosure of WO 128 it would make any difference to the course which the skilled medicinal chemist would take or their expectation of success. His position remained that the skilled medicinal chemist would synthesise a range of compounds within formula 1B of WO 128 without obtaining any guidance from its Examples.

In summary, I am not persuaded that the classical obviousness case operated as a squeeze on AZ.

The Claimants also say that classical obviousness was not a suitably circumscribed issue, because the costs of the issue were intertwined with those of lack of technical contribution and plausibility. I do not agree. In my view the issue of classical obviousness was a distinct one, and there will be costs which are properly attributable to its inclusion in the case. On the other hand, I recognise the force of the Claimants’ submission that work will have been done which could be regarded as relevant to classical obviousness but which was also relevant to other aspects of the case. The Claimants should not be deprived of the costs of work which went to other issues as well as to classical obviousness.

Therefore, in my judgment classical obviousness was a distinct issue raised by the Claimants on which they were unsuccessful, and they should not recover their costs in so far as they were increased by running that issue.

However, I do not regard it as appropriate and just to make the Claimants pay AZ’s costs of the classical obviousness issue. It was not an unreasonable case to run, given the close structural similarity between dapagliflozin and the compound of Example 12, nor am I persuaded that there came a point at which it was unreasonable to pursue it.

AZ contends that the deduction from the Claimants’ costs for the issue of classical obviousness should be 20%. That figure is based on counting paragraphs in the expert reports which AZ contends are attributable to the classical obviousness case. Counting paragraphs in the expert reports is unlikely to be a reliable indication of the proportion of time spent by the Claimants on classical obviousness. For example, AZ did not conduct a similar exercise on the trial transcript because the Claimants did not spend time in cross-examination on classical obviousness. Further, AZ complain about the costs incurred by the parties on the extended disclosure exercise (see below) but none of those costs were attributable to classical obviousness and they will not be reflected in the expert reports.

Further, AZ’s paragraph counting exercise included not only those paragraphs which dealt directly with classical obviousness but also half the paragraphs dealing with the CGK of the medicinal chemist. AZ says that a substantial part of that CGK would not have been necessary if classical obviousness had not been in issue, including much of the background on organic chemistry and aspects of the drug development pathway relating to the identification and development of lead compounds including SAR analysis. I do not agree. Such background material was relevant to the issues on which the Claimants won, as can be seen from, for example, [102], [243]-[245] and [253]-[254] of my trial judgment. I note that Arnold LJ also thought it necessary to summarise such matters in [44] of his judgment on the appeal. In my judgment, only a small part of the material in the CGK sections of the medicinal chemists’ reports (or more pertinently, those of Dr Edwards) could have been omitted if classical obviousness had not been in issue.

AZ’s paragraph counting exercise also included the paragraphs of the medicinal chemists’ reports “dealing with the disclosure of WO 128 as it relates to the compounds covered by the Markush claims and identifying a suitable starting point for development”, as it is said that this material would not have needed to be covered in detail if classical obviousness was not in issue. It is unclear quite which paragraphs have been counted as falling under this head. However, I have looked at the evidence of Dr Edwards dealing with the disclosure of WO 128. I cannot see anything in that section of his first report which should properly have been omitted if classical obviousness had been in issue, although much of that section of his second report was directed to classical obviousness.

For these reasons, I am unable to accept AZ’s paragraph counting exercise as properly representing the proportion of the Claimants’ costs which represent the increased costs of running the classical obviousness case.

Ms Whiting for AZ says that her assessment, based on her first-hand experience of managing the case, is that “dealing with inventive step” occupied around 25% of AZ’s total costs whereas plausibility / lack of technical contribution accounted for around 30%, with 35% on general costs and 10% on disclosure. However, quite apart from the fact that it is the proportion of costs spent on classical obviousness by the Claimants that matters, these estimates are presumably arrived at using the same approach to allocating matters between issues that were adopted in AZ’s paragraph counting exercise, which I have rejected.

The Claimants responded by doing a paragraph counting exercise of their own, both of their expert evidence and their opening skeleton argument. That yielded a figure of 6%, but that exercise excluded all paragraphs relating to the CGK and the disclosure of WO 128 – an approach which, for the reasons explained above, I regard as too generous to the Claimants.

I have to do the best I can with the material I have available. In my judgment, taking into account the results of the paragraph counting exercises and the limitations of those exercises, and having regard to the other evidence with which I have been provided, an appropriate deduction to represent the Claimants’ increased costs of running the classical obviousness case is 10%, and that is the deduction which I will make.

AZ’s initial disclosure list contained three documents (submissions to the EPO and declarations before the USPTO) which contained data comparing the properties of dapagliflozin and other compounds. Further, in its Defences, AZ indicated that it intended to rely, as a technical contribution made by the Patent, upon improved properties of dapagliflozin compared to the compounds of Examples 10 and 12 of WO 128. On 4 March 2024 AZ served a Part 18 response which indicated that it intended to rely on the three documents in its initial disclosure list in support of the alleged technical contribution consisting of improved properties compared to the compounds of Examples 10 and 12.

On 25 March 2024 the Claimants indicated that they intended to seek search-based extended disclosure. On 8 April 2024 the Claimants served a draft List of Issues for disclosure which were said to relate to the pleaded issues of comparative properties. On 29 April 2024 AZ agreed to the List of Issues. On 10 May 2024 AZ proposed a procedure for conducting the disclosure exercise which involved searching a set of documents which had already been disclosed in parallel US litigation. That led to a protracted debate between the parties as to the appropriate procedure for conducting the disclosure exercise, which in turn led to applications by the Claimants in July 2024 for a disclosure guidance hearing. The DRD was finally agreed on 8 August 2024 and AZ produced its disclosure on 13 September 2024.

On 23 September 2024 AZ served a Notice to Admit Facts seeking admissions about the properties of dapagliflozin, including comparative properties with the compounds of Examples 10 and 12. The Claimants made only limited admissions in response. On 9 December 2024 AZ served a CEA Notice relying on 38 documents, mostly taken from its disclosure, in support of its case of a technical contribution consisting of improved properties over the compounds of Examples 10 and 12. However, its expert evidence served on 20 December 2024 did not refer to any of the documents relied on in the CEA Notice. In response to a request by the Claimants, on 23 January 2025 AZ provided particulars of the parts of the documents it was relying on in support of the comparative properties of dapagliflozin and Examples 10 and 12.

At the PTR there was debate as to the role that the CEA Notice documents were to play at trial. However, by the time of trial AZ had abandoned reliance on the CEA Notice documents and at trial it abandoned reliance on a technical contribution consisting of improved properties of dapagliflozin over those of the compounds of Examples 10 and 12.

AZ says that it should be awarded the costs of the extended disclosure exercise. As I understand it, it does not say that extended disclosure was a suitably circumscribed issue on which it won. If it had advanced such a proposition, I would have rejected it. The extended disclosure went to an issue in the case, namely whether the Patent made a technical contribution to the art, on which the Claimants won.

Instead, AZ says that it should have the costs of the extended disclosure exercise because of the Claimants’ conduct. In essence, it makes two points.

First, it says that the Claimants should not have insisted on extended disclosure on comparative properties (and then failed to make comprehensive admissions and instead objected to the CEA Notice) given that their case was that data not contained in the Patent was irrelevant. That was indeed the Claimants’ case, but AZ was plainly intending to advance a case that such data was relevant, and only abandoned that case at the last moment. In those circumstances, the Claimants cannot be criticised for seeking extended disclosure.

Secondly, AZ says that the Claimants approached the conduct of the disclosure exercise in an unreasonable and indeed aggressive way. I have considered carefully the evidence relating to the events of May to August 2024 and have read the correspondence relating to disclosure. There is no need to go into details; suffice it to say that I can see nothing unreasonable, let alone aggressive, in the way that the Claimants conducted themselves.

I therefore reject AZ’s submission that it should have the costs of the extended disclosure exercise. In this respect, there is no reason to depart from the general rule that the losing party should pay the costs of the winning party.

On 26 January 2024 Meade J heard applications by the Claimants for the trial to be listed before the CMC. He dismissed those applications for the reasons given in his judgment: [2024] EWHC 137 (Pat). The order for costs which he made was that Viatris should pay AZ’s costs of the Viatris application, that Glenmark should pay AZ’s costs of the Glenmark application and that otherwise there should be no order as to costs (which means that there was no order as to costs of the Teva application).

The Claimants have not indicated the percentages of their total costs of these proceedings which are attributable to their respective trial listing applications, but instead have not included the costs of those applications in the total costs indicated in their evidence. However, they invite me to make an order awarding them a percentage of their costs of these proceedings, without taking account of their costs of their trial listing applications (of which they have been deprived by Meade J’s order). In my view, in the circumstances the appropriate course is to expressly exclude those costs from the base from which a percentage deduction will be made.

AZ invited me to deal with the costs orders in its favour against Viatris and Glenmark by making a deduction from the costs payable to those Claimants, and Viatris and Glenmark have indicated that they are willing to agree to that course in the interests of procedural efficiency. AZ says that its costs of the trial listing applications were £63,000, and that those costs should be split equally between Viatris and Glenmark. The Claimants say that as there were three applications, and there was no order as to costs on the Teva application, AZ is only entitled to £21,000 against each of Viatris and Glenmark. AZ ripostes that the applications were different – Viatris and Glenmark sought a trial listing earlier than the usual window whereas Teva sought a trial listing in the usual window.

I can see that AZ is likely to have incurred costs dealing with the applications which sought an earlier trial date which are distinct from those it incurred dealing with Teva’s application, but equally I do not accept the suggestion that AZ had no costs of Teva’s application. Doing the best I can with the limited material I have, I am going to attribute £24,000 to each of the Viatris and Glenmark applications and £15,000 to the Teva application. I will make percentage deductions from the costs of Viatris and Glenmark accordingly.

The original Grounds of Invalidity served by Teva and Glenmark (but not Viatris) alleged invalidity of SPC/GB14/050, for the combination of dapagliflozin and metformin, on grounds of non-compliance with the requirements of Articles 3(a), (c) and (d) of Regulation 469/2009. The basis for each allegation was that the Patent did not disclose any combined effect of dapagliflozin and metformin and that any technical advance related to dapagliflozin alone. The Grounds of Invalidity also alleged that claims 4-7 of the Patent (which related to combinations of dapagliflozin and antidiabetic agents, including metformin in claim 7) were mere collocations. In response to those allegations, AZ pleaded in its Defence that there was an additive effect when dapagliflozin was used in combination with metformin.

In February and March 2024 the Claimants served a series of requests for further information. In responses in March and April 2024, AZ indicated that it contended that each of claims 4-7 were independently valid and that the validity of the combination SPC depended on the presence of a valid claim which protected the combination of dapagliflozin and metformin.

On 17 May 2024 Glenmark indicated its intention to amend its Grounds of Invalidity to delete the allegations under Articles 3(a), (c) and (d). On 22 May 2024 AZ said that it would consent to the amendments if Glenmark agreed to be responsible for the costs of and arising from the amendments, including its costs of addressing Glenmark’s pleaded case on the combination SPC. On 23 May 2024 Glenmark responded by serving the Amended Grounds of Invalidity and agreeing to pay AZ’s costs of and arising from the amendments, but without saying whether it agreed that those costs included the costs of addressing the pleaded case on the combination SPC.

On 22 May 2024 AZ asked Teva whether it would be making the same amendment as Glenmark. On 12 June 2024 Teva responded by asking whether, in AZ’s response to the requests for further information, a “valid claim” meant one of claims 4-7. On 25 June 2024 AZ confirmed that it did. On 3 July 2024 Teva said that in the light of that confirmation it proposed to amend its Grounds of Invalidity to delete the allegations under Articles 3(a), (c) and (d). On 11 July 2024 AZ said that it agreed to those amendments on the same basis as it had indicated to Glenmark on 22 May 2024. On 15 August 2024 Teva said that it agreed to pay the costs of and arising from the amendments, but expected those to be minimal (i.e. those of amending the Defence); its Amended Grounds of Invalidity were served on 16 August 2024. On 22 August 2024 AZ responded noting that Teva had not addressed AZ’s costs of addressing Teva’s case on the combination SPC and reserved the right to seek such costs after trial.

As can be seen from the chronologies set out above, while Teva and Glenmark agreed to pay AZ’s costs of and arising from the amendments, there was no agreement to pay AZ’s costs of addressing the cases advanced against the combination SPC under Articles 3(a), (c) and (d). That matter was (expressly in the case of Teva and implicitly in the case of Glenmark) left unresolved. Teva and Glenmark submit that they should only pay the costs of and arising from the amendments, while AZ contends that they should pay its costs of the Articles 3(a), (c) and (d) allegations.

The written submissions on behalf of Teva and Glenmark say that while AZ initially contended that claims 4-7 were independently valid, by June 2024 it had abandoned that position and so there was no need to pursue a standalone case of invalidity of the combination SPC. However, by June 2024 AZ had not abandoned the position that claims 4-7 were independently valid. On the contrary, it was maintaining that position and stating that the validity of the combination SPC depended on the validity of one of claims 4-7. In any event, Glenmark had already made its amendments in May 2024. In those circumstances I am unable to accept the submission by Teva and Glenmark that their abandonment of the Article 3(a), (c) and (d) cases against the combination SPC was prompted by some step taken by AZ which rendered those cases unnecessary.

In my judgment Teva and Glenmark should not recover their costs of their Article 3(a), (c) and (d) cases against the combination SPC which they dropped. For the avoidance of doubt, I do not mean only that they should bear the costs of and arising from the amendments – Teva and Glenmark should not recover their costs in so far as they were increased by those allegations. While I recognise that there is some similarity between the basis for those allegations and the collocation argument, Teva and Glenmark will have incurred costs that are attributable to the Article 3(a), (c) and (d) allegations.

However, in my judgment these are not issues on which AZ should recover its costs. The allegations appear to me to be entirely reasonable ones to have run, and AZ provided no basis for its contention that the attack was one which should never have been run.

Teva has indicated that its costs of the amendments themselves were about £5,000 and its other costs of the Article 3(a), (c) and (d) allegations were about £12,000. Glenmark has indicated that its costs of the Article 3(a), (c) and (d) allegations in their entirety were about £5,000. Teva has not identified its costs of and arising from the amendments (it only provided its total costs of dealing with the Articles 3(a), (c) and (d) allegations, namely £60,000) but I agree with Teva and Glenmark that those costs are likely to be minimal. I have to do the best I can with the material I have. I will make percentage deductions to achieve deductions of about £18,000 from Teva’s costs and about £6,000 from Glenmark’s costs.

For the reasons explained above, I will make deductions of 10% from the costs of each of the Claimants. I will also deduct 2% of Viatris’s costs, 0.8% of Teva’s costs and 1.2% of Glenmark’s costs to reflect the costs of the Viatris and Glenmark trial listing applications and the Teva and Glenmark pleading amendments (the greater percentage deduction for Viatris is because its costs were lower than those of the other Claimants).

I need to stand back and ask myself whether those costs orders are in all the circumstances the right results. In my judgment they are. I think the justice of the case requires the Claimants to be deprived of between 10 and 12% of their costs given that they advanced, but were unsuccessful on, a distinct argument which increased their costs, and took other positions which increased those costs; but they should not be deprived of more of the costs to which they would otherwise be entitled as overall winners.

There is no dispute that AZ should make payments on account – the dispute relates to the quanta of such payments. The Claimants seek payments of 75% of their costs, while AZ says that an appropriate figure is 55%. I have to decide what is a reasonable sum, i.e. an estimate of the likely level of recovery subject to an appropriate margin to allow for error in the estimation – CPR 44.2(8) and Excalibur Ventures v Texas Keystone [2015] EWHC 566 (Comm) at [23]-[24].

AZ cited Siemens Gamesa v GE [2021] EWHC 254 (Pat) at [29] for the proposition that 60% is the de facto standard figure awarded in these sorts of cases. However, in that case Meade J awarded 70% and said that there were significant numbers of cases in which 70% was awarded, as well as many in which 60% was awarded.

Viatris’s total costs are said to be £1.22M, Teva’s to be £2.25M and Glenmark’s to be £2.49M, giving a total of £5.96M. AZ’s total costs are said to be £4.47M. AZ does not suggest that the costs incurred by the Claimants were disproportionate. Nor does it suggest that the hourly rates charged by the Claimants’ solicitors were unreasonable – on the contrary it points to the significantly lower hourly rates charged by the Claimants’ solicitors compared to its solicitors to emphasise the greater number of hours for which the Claimants’ solicitors have charged.

AZ’s principal objection to the reasonableness of the Claimants’ costs is that the number of hours charged for by the Claimants’ solicitors indicates that there has been inadequate co-ordination between the Claimants, leading to duplication of effort. The Claimants say that efforts were made to avoid duplication, and I recognise that separately represented claimants are likely to incur greater levels of costs than a single party. However, the difference between the total costs incurred by the Claimants and AZ’s costs, together with the higher hourly rates charged by AZ’s solicitors, mean that there is a real possibility that on a detailed assessment it would be found that there has been some unnecessary duplication. I have to bear that in mind, together with the large sums involved, when arriving at the reasonable sums to be paid on account.

AZ also notes that the Claimants’ experts’ fees were over £100,000 greater than those of AZ’s experts, and that the Claimants’ counsels’ fees were almost double those of AZ’s counsel. Some, but not all, of the disparity in counsels’ fees is due to the Claimants instructing separate junior counsel, as is normal in cases of this kind. AZ also raises some other more minor matters which it says should not be recoverable on an assessment.

Taking all these matters into account, I think that a reasonable sum in this case is 65% of the Claimants’ costs after deductions. In my judgment the Claimants are unlikely to recover less than that percentage of their costs. I will order AZ to make payments on account of £698,000 to Viatris, of £1,305,000 to Teva and of £1,437,000 to Glenmark.

AZ seeks 28 days to make the interim payments, saying that a shorter period would be impractical. The Claimants resist that, and say that payment should be made within 14 days. In circumstances where it is agreed that interest at the judgment rate should run from 24 June 2025 I can see no real prejudice to the Claimants in acceding to AZ’s request.

AZ seeks an order under CPR 31.22 in respect of the documents in the trial bundles that were marked “Confidential”. The documents in question concern work done by BMS as part of its SGLT2 program, which was later acquired by AZ, and are said to contain sensitive information about the development program. The documents are those referred to in AZ’s CEA Notice and correspondence relating to those documents. As explained above, at trial AZ did not rely on its CEA Notice, and consequently the documents played no part in the trial. The Claimants do not resist an order under CPR 31.22, and in the circumstances I am satisfied that such an order should be made.