Apotex Europe Ltd & Ors v Smithkline Beecham Plc & Anor

Applications concerning the conduct and timetable of pre-trial experiments must be assessed proportionately. Parties to High Court litigation are expected to show reasonable give and take and should not seek judicial intervention over every minor disagreement. An application is misconceived where the dispute is limited, the proposed timetable is reasonably shortened, and the relief sought would impose disproportionate demands on the court and the parties.

The claimants brought patent infringement and validity proceedings concerning Paroxetine Hydrochloride. An interlocutory injunction had been granted to the defendants and trial was listed for June. During trial preparation, the claimants conducted experiments and agreed to repeat three of them. The defendants sought an order requiring all three repetitions to be conducted simultaneously, despite evidence that this was not reasonably possible and an alternative timetable involving some overlap and completion within about 10 days.

The application concerned whether the court should compel the more compressed timetable and whether the dispute justified the use of court resources.

1. The application was refused. The dispute concerned the timing of three repeated experiments. The claimants’ scientist said that conducting them simultaneously was not reasonably possible, while a revised timetable involving some overlap would complete the work in about 10 days.

2. Parties to High Court litigation are expected to conduct themselves with reasonable give and take. They should not apply to the court whenever an opponent proposes or adopts a course that is not entirely to their liking.

3. The court must take a proportionate view of interlocutory disputes. The difference between the parties involved about two days of experimental time, yet the defendants had issued an urgent application involving leading and junior counsel and representatives from two substantial solicitors’ firms. The application was wholly unreasonable and disproportionate to the issue.

4. Any additional cost resulting from a longer timetable could, if necessary, be addressed on assessment of costs at the end of the trial. The court therefore declined to make the order sought.

Not stated in the judgment.