The Supreme Court has provided important guidance on the illegality defence, as Jack Harris reports
In the recent case of Les Laboratoires Servier v Apotex Inc [2014] UKSC 55, [2014] All ER (D) 328 (Oct), the Supreme Court provided guidance on when a defence of illegality (or ex turpi causa non oritur actio ) may be made out. Although this was an intellectual property case, concerning an alleged patent infringement, it has important ramifications for personal injury claims too.
The facts
Les Laboratoires Servier (LLS) was a French pharmaceutical company. LLS began proceedings against Apotex Inc (Apotex) for alleged infringement of a UK patent held by LLS on a particular drug. Mann J granted LLS an interim injunction on condition that LLS agreed to provide the usual cross-undertaking in damages to Apotex. Subsequently, Pumfrey J held that the patent was invalid and thus discharged the injunction.
Accordingly, Apotex sought to enforce the undertaking in damages. It was agreed that, but for the interim injunction, Apotex would have sold 3.6 million packs
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