Actavis UK Ltd & Ors v Eli Lilly & Company

The court may give judgment on admissions where the admission is contained in written material, including pleadings and expert evidence, and is confirmed in recorded submissions. A declaration should be made only where it serves a useful purpose. Reducing genuine commercial uncertainty and clarifying the non-infringing status of a product at a defined point may satisfy that requirement. A declaration may be confined to the circumstances presently established and leave future materially changed circumstances open for determination.

Actavis sought judgment on admissions and a declaration concerning indirect patent infringement arising from healthcare professionals reconstituting or diluting its product. Lilly admitted that, at launch, healthcare professionals would follow the product instructions and use dextrose solution, so that the relevant acts would not infringe. Lilly maintained that infringement might arise later if third-party stability data concerning saline became publicly available and practice changed.

The application followed earlier proceedings, including a Court of Appeal judgment delivered on 25 June 2015, cited as [2015] EWCA Civ 555. The issues were whether the admissions supported judgment and whether the proposed declaration would serve a useful purpose.

1. Judgment on admissions. The admissions relied upon were contained in Lilly’s draft amended statement of case and expert evidence concerning the four jurisdictions. Their effect was confirmed by counsel in submissions and recorded in a transcript. The requirements for judgment on admissions were therefore satisfied.
2. Scope of the declaration. The declaration would not improperly confer general immunity from infringement. Lilly’s own case was that there would be no infringement at launch, while any later issue depended on the possible publication of saline stability data and a subsequent change in practice. The declaration was appropriately limited to the current circumstances and made no ruling on the position after such data became publicly available.
3. Useful purpose. The court has an inherent jurisdiction to grant a declaration where it would serve a useful purpose. The declaration would assist in reducing commercial uncertainty, particularly concerning reimbursement pricing in Italy and discussions with prospective customers in the four countries. It would also be useful in relation to the Letters part of the case.
4. Actavis were entitled to judgment on admissions, and the criteria for granting the declaration sought were satisfied.

The judgment records that the proceedings had been addressed in earlier judgments and in a Court of Appeal judgment delivered on 25 June 2015, cited as [2015] EWCA Civ 555. No further appellate disposition is stated.