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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd & Anor  EWCA Civ 227 (06 April 2017)
Cite as:  EWCA Civ 227
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
HIS HONOUR JUDGE HACON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOYLAN
SIR TIMOTHY LLOYD
| (1) GLAXO WELLCOME UK LIMITED (T/A ALLEN & HANBURYS)
(2) GLAXO GROUP LIMITED
|- and -
|(1) SANDOZ LIMITED
(2) SANDOZ INTERNATIONAL GMBH
Martin Howe QC and Iona Berkeley (instructed by White and Case LLP) for the Respondents
Hearing date: 23 March 2017
Crown Copyright ©
Sir Timothy Lloyd:
The issues on the appeal
i) He held that there was no sufficient allegation of a common design against either of them to provide a sufficiently arguable case of their being liable as joint tortfeasors with Sandoz UK.
ii) He also held that, even if there had been such an allegation, the claim against them would have been barred by limitation, because the alleged acts relied on in respect of them were done more than six years before the issue of the proceedings.
Liability as a joint tortfeasor
"First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying "get-up" (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. … Thirdly, he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff."
i) All four companies, Sandoz UK, International, Aeropharm and Hexal, are members of the Novartis group of companies and, within that group, of the Sandoz sub-group of companies. Sandoz UK, International and Hexal trade in the field of generic pharmaceuticals, including inhalers for asthma sufferers. Aeropharm develops and manufactures generic pharmaceuticals, including such inhalers, exclusively for the Sandoz group of companies. (The relationship between the companies and their respective fields of activity is set out in paragraphs 45 to 46D.)
ii) Sandoz UK is responsible for distribution, marketing and/or sale of AirFluSal in the UK.
iii) International is responsible for global decisions about global respiratory products, including in the UK and Europe, AirFluSal being one such product. International has a Global Respiratory Department, established in about 2009.
iv) International oversees and approves the launch and marketing of AirFluSal in all countries.
v) International, Aeropharm and Hexal were responsible for the development of AirFluSal. It was designed and developed with the express knowledge and intention on the part of International, Aeropharm and Hexal that it would be marketed and sold throughout the EU, including in the UK, pursuant to the chosen design. Aeropharm and Hexal, or one of them, determined the colour, shape, technical design and overall get-up of the product in or around 2005 to 2007. International, Aeropharm and Hexal, or one or more of them, were responsible for choosing the design and colour of the label on the inhaler and the external packaging, the design and colouring of such labelling and packaging being materially uniform in each country where the product was launched, including in the UK and other EU countries.
vi) International, Aeropharm and Hexal (or one or more of them) were involved in carrying out testing and patient studies necessary to obtain regulatory approval for AirFluSal, including for the UK. Sandoz UK, International, Aeropharm and Hexal (or one or more of them) collected or collated data including the results of technical and patient studies or provided the necessary documentation, including those detailing the shape, colour and technical specifications of the AirFluSal inhaler, as part of the marketing authorisation dossier submitted to the regulatory authorities in the EU, including the UK, pursuant to which marketing authorisations were granted in the countries in the EU, including the UK, in the absence of which AirFluSal could not be placed on the UK market.
The law on joint tortfeasance
"To establish accessory liability in tort it is not enough to show that D did acts which facilitated P's commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P, and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort."
"First the defendants must have assisted the commission of an act by the primary tortfeasor; secondly the assistance must have been pursuant to a common design on the part of the defendant and the primary tortfeasor that the act be committed; and thirdly the act must constitute a tort as against the claimant."
Lord Justice Moylan
Lord Justice Floyd