Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd

To join a proposed defendant, the court must be satisfied that the pleaded case is sufficiently arguable, applying a test akin to summary judgment. Where jurisdiction is established under art.7(2) of Brussels I, no additional cumulative “good arguable case” burden arises.

Joint tortfeasance requires active cooperation with the primary tortfeasor, an intention that the cooperation assist the tort, and more than a de minimis contribution. Designing or supplying goods outside England, even with knowledge of their intended English sale, does not alone satisfy that test. A primary act of passing off must occur within England and Wales. Claims for joint tortfeasance remain subject to the ordinary limitation period for tort claims.

The claimants marketed the Seretide asthma inhaler. They alleged that the AirFluSal inhaler marketed by Sandoz UK had a deceptively similar get-up and brought proceedings for trade mark infringement and passing off.

The trade mark claim was stayed pending appeal. The present application concerned the proposed joinder of Aeropharm GmbH and Hexal AG as additional defendants to the passing off claim, principally to obtain disclosure concerning the design and development of the AirFluSal inhaler.

Sandoz International GmbH was joined by consent. The issues were whether an arguable case of primary or joint tortfeasance had been shown, whether the German proceedings engaged art.30 of Brussels I, whether limitation prevented joinder, and whether joinder was otherwise appropriate.

1. Application dismissed. Sandoz International GmbH was joined by consent. The application to join Aeropharm GmbH and Hexal AG was dismissed.

2. Before exercising the joinder discretion under CPR 19.2, the court must be satisfied that the proposed pleaded allegations disclose a sufficiently arguable case. The appropriate standard is akin to that applied on summary judgment. Because the proposed claims concerned torts committed in England and jurisdiction arose under art.7(2) of Brussels I, there was no further cumulative requirement to show a “good arguable case”.

3. Joint tortfeasance by common design requires active cooperation to bring about the primary tort, an intention that the cooperation assist that tort, knowledge of the intended act of the primary tortfeasor, and a contribution exceeding de minimis. Designing the product, collecting regulatory data, conducting clinical trials, or supplying goods outside the jurisdiction did not, without more, amount to active cooperation in Sandoz UK’s sale or promotion of the goods in England.

4. The court held that a contribution made outside England may in principle found joint liability. However, Aeropharm and Hexal had not shown an arguable case of joint tortfeasance. Hexal’s alleged marketing at an international congress was no more than de minimis. The design, regulatory and clinical activities did not establish a common design with Sandoz UK to sell or promote AirFluSal in England. Supply by Aeropharm in Germany was insufficient.

5. A primary act of passing off is territorial. It must be committed in England and Wales to be actionable there. The evidence indicated that Aeropharm supplied Sandoz UK in Germany, and there was no arguable case that Aeropharm or Hexal had committed or threatened a primary act of passing off in England.

6. Section 2 of the Limitation Act 1980 applies to claims for joint tortfeasance because they remain actions founded on tort. Section 35 treated the proposed claims as new claims commenced with the original action. Joinder after expiry of the limitation period therefore required one of the conditions in CPR 19.5(3), and the requirement that joinder be necessary was not met merely because prospective disclosure might assist the existing claim.

7. The court’s discretion would not have been exercised in favour of joinder in any event, since joining parties solely to obtain potentially useful disclosure would have been disproportionate and inconsistent with the overriding objective.