Chemistree Homecare Ltd v Abbvie Ltd

On an application for an interim injunction alleging abuse of a dominant position, the claimant must establish a serious question to be tried, or a real prospect of success, on both dominance and abuse. Market definition requires evidence of demand substitution. A patented medicine does not constitute a separate product market merely because it has no generic equivalent or because some patients cannot readily switch treatment. A supplier with a policy of not supplying wholesalers may maintain that policy when it discovers that a customer has been reselling for wholesale purposes. Conditional supply may amount to abuse, but ordinary-order principles apply in their proper factual context. Speculative evidence cannot establish the threshold for interim relief.

The claimant supplied Kaletra, an HIV medicine, through homecare, wholesale and overseas prescription arrangements. The defendant had supplied it for several years but, following unusually large orders and disclosure that part of the demand concerned wholesale and EU prescriptions, limited further supply to UK homecare requirements supported by appropriate evidence.

The claimant issued proceedings alleging abuse of a dominant position under UK and EU competition law and sought monthly supplies pending trial. Hilliard J had made a short-term interim arrangement pending the substantive hearing. The central issues were whether Kaletra was a relevant product market in which the defendant was dominant, whether the conditional refusal to supply was abusive, and where the balance of risk lay.

1. Interim injunction test. The claimant had to show a serious question to be tried, or a real prospect of success, on dominance and abuse, and that granting the injunction carried the least risk of injustice. The mandatory nature of the order did not materially alter the test in this case. The application failed at the threshold stage.
2. Relevant market and dominance. Demand substitution was the principal issue. The evidence showed that Kaletra was one of several alternative ritonavir-boosted protease inhibitors for therapy-naive patients. Although some established patients might require Kaletra and a single patented drug could, in principle, constitute a separate market, the claimant produced no evidence showing the proportion of patients or purchases for which substitution was unavailable. The absence of a generic equivalent was insufficient. The claimant could not rely on hoped-for disclosure to establish a serious question on a speculative basis.
3. Abuse. The defendant’s policy was not to supply wholesalers in Great Britain, while supplying homecare providers contracting with NHS trusts. A customer’s undisclosed resale of some products for wholesale purposes did not make those orders ordinary orders or prevent the supplier from enforcing its policy once the position was known. The defendant’s request for suitably anonymised evidence of UK homecare demand was not an effective refusal to supply that business. The claimant therefore had no real prospect of showing abuse even if dominance were established.
4. Parallel exports. The principles in Sot. Lelos v GlaxoSmithKline [2008] 5 CMLR 20 concerned a supplier that positively supplied wholesalers and sought to restrict ordinary orders to limit parallel exports. That factual context differed from the defendant’s policy. The court observed, obiter, that even such a supplier might legitimately refuse orders disproportionate to previous domestic requirements.
5. Risk of injustice and costs. UK homecare supply was available on production of appropriate evidence. Wholesale and overseas losses were financial and compensable in damages. The interim application was dismissed. The claimant was ordered to pay costs, assessed on the indemnity basis up to 4 January 2013 and on the standard basis thereafter, with detailed assessment and £50,000 paid on account.

The judgment records that Hilliard J made a short-term consent order on 14 January 2013 for interim supplies pending this hearing. This court then dismissed the application for interim relief. No appeal is stated.