Warner-Lambert Company Llc v Teva UK Ltd & Ors

In deciding whether to continue an interim injunction, the court must assess the likely market effect of the restrained conduct over the relevant period and whether damages would adequately compensate the claimant. A substantial generic launch may cause irreparable commercial and reputational harm, even during a short period. A carve-out protecting existing contractual commitments does not justify releasing further uncommitted stock. However, an injunction may be refused against retail dispensing of product already held by pharmacies where the relevant harm arises from wholesale distribution and the product has passed beyond effective injunctive control. Urgent disclosure may be ordered to identify stock remaining in the wholesale supply chain.

The claimant sought continuation and extension of a without-notice injunction restraining the sale and distribution of generic atorvastatin before expiry of the supplementary protection certificate protecting its Lipitor product. The injunction already applied to Teva, Phoenix and AAH, subject to a carve-out for the claimant’s product and certain pre-existing contractual commitments.

Phoenix and AAH applied to discharge or vary the order. The claimant sought an injunction against affiliated companies, including Barclay and Rowlands, and disclosure of the recipients and quantities of atorvastatin supplied by AAH. The central issues were the balance of convenience, irreparable harm, the effect of existing contractual commitments, the treatment of stock already held by a retail pharmacy, and disclosure necessary to preserve effective relief.

1. Continuation and extension of injunction. The court continued the injunction against the existing defendants and granted an injunction against Barclay. The subsequent evidence substantially supported the claimant’s case that the generic launch was on a large scale and could distort the market during the short period before the further hearing.
2. Balance of convenience and irreparable harm. Damages would not be an adequate remedy for the claimant. A substantial price differential could affect prices, market conditions and reputation in ways that an inquiry as to damages could not adequately measure. The alleged reputational harm to AAH and Phoenix from retaining the injunction was too tenuous to outweigh that risk.
3. Effect of the carve-out. The carve-out was intended to protect existing contractual commitments while the court held the balance between the parties. It did not provide a proper basis for releasing further generic product for which no contractual commitment existed, since doing so could extend the period of market damage.
4. Retail stock already held. Rowlands was not restrained from dispensing existing stocks identified in the schedule. Once the product had entered retail pharmacies, dispensing was not the source of the relevant harm and an injunction would be acting in vain. The material harm arose from wholesale sales and distribution.
5. Disclosure. AAH was required in principle to disclose promptly the names and addresses of persons, firms or companies to whom it had supplied or offered to supply atorvastatin, and the quantities supplied, subject to the stated exclusion for dispensing pharmacies. The disclosure was urgent because wholesale stock might otherwise reach retail pharmacies beyond the effective reach of an injunction.

First-instance decision. The judgment records that a without-notice interim injunction had been granted seven days earlier, on 20 June 2011, with a return date of 11 July 2011.