So Lord Sumption explained that if the public conscience rule was adopted it would be virtually impossible for either party's advisers to give their clients a view on prospects in any case because the outcome would be completely unpredictable and dependent on which Judges heard the case. For example, in the present case, the Court of Appeal reached a different decision from the judge at first instance, not because they disapproved of his decision as a matter of principle but because they attached more weight to the importance of respecting the Canadian patents and were less impressed with Apotex's argument that it believed the Canadian patent to be invalid. A test which requires particular judges to weigh or balance the behaviour of plaintiffs is wrong because it leads to inconsistency. The House of Lords had already criticised and rejected the public conscience test in Tinsley v Milligan 1 AC 240 on the grounds that it was unprincipled. The judgement of the Court was given by Lord Sumption. In other words, the test was discretionary in nature (if not in law) and called for a subjective judgement about the behaviour of the plaintiff in any particular case.īut the Supreme Court did not think that the test outlined by the Court of Appeal was satisfactory. The Court of Appeal had answered that question in the negative applying the "public conscience" test that Kerr LJ had applied in Euro-Diam v Bathurst Ltd 1 QB1 in which he said that "in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts". The main question for the court was this - does the infringement of a foreign patent constitute a relevant illegality for the purpose of the defence? On this decision being issued, Servier attempted to avoid having to pay Apotex its compensation in the UK on the basis that it was contrary to public policy for Apotex to recover damages in the UK for being prevented from selling a product whose manufacture in Canada would have been illegal there as an infringement of the Canadian patent. The Canadian courts upheld the patent in that jurisdiction and found that Apotex were infringing it by manufacturing the drugs there. At around the same time, a litigation between the parties in Canada was concluded. The drugs would have been manufactured in Canada but sold in the UK. The compensation was calculated on the basis that Apotex would have sold 3.6m packs of the drugs in the UK had there been no injunction in place. The UK courts then found the UK patent to be invalid and Apotex became entitled to compensation. In other words, if the injunction later turned out to be wrongful, Servier would have to compensate Apotex. Servier initially obtained an injunction against the import but only on the basis of giving a cross-undertaking in damages. Apotex, a company which specialises in the manufacture and marketing of pharmaceutical products, began to import and sell perindopril erbumine tablets in the UK at the end of July 2006. It held a UK patent protecting a crystalline form of the drug and a Canadian patent which protected the compound itself. Servier were the holders of a number of patents for a drug (perindopril erbumine) which was used for treating hypertension and cardiac insufficiency. The defence arose in the context of an intellectual property dispute. The most recent case to deal with it is the judgement of the Supreme Court in Les Laboratoires Servier v Apotex Inc UKSC 55 which was given on 29 October 2014. There is a dearth of authority on the defence in the Scottish courts but far more is said about it in England (where the defence operates in largely the same way). The problems with the defence are its rationale and its scope. The basic principle of the defence is that the pursuer should not be allowed to benefit from an illegal act.
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