Glaxo Group Ltd & Anor v Europharm of Worthing Ltd & Anor

Summary judgment is inappropriate where the issue relied upon is a question of fact and the earlier determination arose in proceedings involving different parties. A prior first-instance finding does not prevent a party adducing better evidence and seeking a different result before another judge. The court must distinguish between penalising an unmeritorious plea through costs and prohibiting the party from advancing it at trial. Procedural requirements for notice must also be addressed on the particular facts, and short service will not be justified merely because the application can conveniently be heard immediately.

The claimants brought passing-off and trade mark infringement proceedings concerning the parallel importation of pharmaceutical products. The defendants applied under CPR rule 24.2 for summary judgment on whether repackaging was necessary to obtain effective access to the United Kingdom market.

The defendants relied on an earlier finding in related proceedings involving different parties. The claimants argued that necessity was a question of fact, that no issue estoppel arose, and that they should be permitted to rely on better evidence at trial. They also objected to the short notice given for the application.

1. The application for summary judgment was rejected. The defendants had not provided a satisfactory explanation for giving only three days’ notice instead of the required 14 days. The court emphasised that each case must be considered on its own facts and that convenience in hearing an application immediately does not itself justify short service.

2. The issue of whether repackaging or relabelling was necessary was a question of fact. The earlier decision in the Dowelhurst proceedings did not create issue estoppel because the present proceedings were between different parties.

3. The claimants were entitled to attempt to establish the issue with better evidence before a different judge. The earlier first-instance finding did not demonstrate that there was no realistic prospect of success in the present proceedings or that there was no other compelling reason for the issue to be tried.

4. A distinction exists between a defence being sufficiently weak that pursuing it may be penalised in costs and the court prohibiting the party from advancing that defence at all. The possibility that the same factual conclusion might ultimately be reached, and might affect the reasonableness of defending the issue for costs purposes, did not justify summary judgment.

The application was dismissed.