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

For accessory liability as a joint tortfeasor, mere facilitation of another’s tort is insufficient. The defendant must have assisted the commission of the tort pursuant to a common design to do, or secure the doing of, the acts constituting it. Participants may perform different stages, and a later involvement by the primary tortfeasor does not necessarily prevent liability. Where liability is for the primary tort, limitation runs from accrual of that tort, not from earlier preparatory acts. A long interval in pharmaceutical development is not, by itself, fatal, although causation, withdrawal and continuing common design may require investigation.

Glaxo claimed passing off against Sandoz UK concerning the colour, get-up and packaging of the AirFluSal inhaler. It sought to join Sandoz International, Aeropharm and Hexal as defendants, alleging that they helped develop, design, manufacture and obtain authorisation for the product pursuant to a common design for its sale in the UK. The trade mark claim was not relevant to this appeal.

His Honour Judge Hacon refused joinder of Aeropharm and Hexal, holding that the allegations showed only facilitation and that claims based on acts occurring more than six years earlier were time-barred: [2016] EWHC 2743 (Ch). The appeal concerned whether the pleading disclosed an arguable case of joint tortfeasor liability and whether limitation ran from the earlier preparatory acts or from Sandoz UK’s later UK sales.

The appeal was allowed unanimously. Aeropharm and Hexal were ordered to be added as defendants, and the case was remitted to the High Court for consequential case management directions.

1. Applicable principles. At the joinder stage, the question was whether the proposed allegations disclosed a sufficiently arguable case. The passing-off claim was based primarily on acts by Sandoz UK. The court adopted the principles of common-design accessory liability stated in Fish & Fish Ltd v Sea Shepherd UK [2015] UKSC 10, [2015] AC 1229. Mere facilitation is insufficient. The defendant must assist the commission of the primary tort pursuant to a common design to do or secure the doing of the acts constituting it. There is no universal formula; the assessment depends on the circumstances.
2. Application to the pleading. The allegations that International, Aeropharm and Hexal developed and designed AirFluSal, intended its marketing throughout the European Union including the UK, participated in regulatory work, and supplied or supported the product were sufficient to allege assistance and common design. It was not fatal that Sandoz UK became involved later or that different companies performed different stages. A fragmented corporate structure could not, without more, prevent joint tortfeasor liability. Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] 1 WLR 1556 supported that approach. Napp Pharmaceutical Group Ltd v Asta Medica Ltd [1999] FSR 370 was distinguishable because the present pleading alleged substantially more than a corporate relationship and the supply of regulatory information.
3. Limitation. Under section 2 of the Limitation Act 1980, the claim against the alleged accessories was for the same cause of action as the claim against Sandoz UK. The cause of action accrued when the primary tort was committed by marketing and selling AirFluSal in the UK, not when the earlier design and preparation work occurred. A pre-emptive quia timet injunction may sometimes be sought before a legal cause of action accrues; section 36(1)(a) excludes section 2 in that context, while section 36(2) preserves equitable control based on acquiescence or otherwise.
4. Delay. A lengthy interval between preparatory acts and the primary tort is not itself conclusive. It may raise issues of causation, withdrawal or whether a continuing common design existed, but those matters did not justify refusing joinder at this stage.

1. Court of Appeal (Civil Division). Allowed the appeal and ordered that Aeropharm and Hexal be added as defendants.
2. High Court of Justice, Chancery Division (Intellectual Property). His Honour Judge Hacon refused to join Aeropharm and Hexal as additional defendants: [2016] EWHC 2743 (Ch).