Neutral Citation Number: [2017] EWHC 2006 (Ch) Case No: HC-2011-000064 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION Competition Appeal Tribunal Victoria House, London WC1A Date: 02/08/2017 Before : THE HONOURABLE MR JUSTICE ROTH - - - - - - - - - - - - - - - - - - - - - Between : (1) THE SECRETARY OF STATE FOR HEALTH (2) THE NHS BUSINESS SERVICES AUTHORITY Claimants - and - (1) SERVIER LABORATORIES LIMITED (2) SERVIER RESEARCH AND DEVELOPMENT LIMITED (3) LES LABORATOIRES SERVIER SAS (4) SERVIER SAS Defendants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JON TURNER QC, DAVID DRAKE & PHILIP WOOLFE (instructed by Peters & Peters Solicitors LLP) appeared on behalf of the Claimants KELYN BACON QC & DANIEL PICCININ (instructed by Bristows LLP) appeared on behalf of the Defendants Hearing dates: 18 & 19 July 2017 - - - - - - - - - - - - - - - - - - - - - Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. ............................. MR JUSTICE ROTH MR JUSTICE ROTH NHS v Servier Approved Judgment Mr Justice Roth: Introduction 1. This is an application to strike out one of several distinct grounds of the claim in these proceedings. In particular, the defendants (to whom I shall refer collectively as “Servier” save where it is necessary to distinguish between them) seek an order which would remove from the claim the tort of causing loss by unlawful means, sometimes also called the intentional interference tort. For convenience, I shall refer to it simply as the tort of unlawful means. At the conclusion of the argument, I informed the parties that I would grant Servier’s application, for reasons to be delivered later. This judgment sets out my reasons for that decision. 2. The proceedings in which this arises concern the pharmaceutical drug perindopril, a prescription only medicine which Servier sold in the UK under the brand name “Coversyl”. It is an ACE (Angiotensin-Converting Enzyme) inhibitor used in the treatment of hypertension and cardiac insufficiency. Supply of Coversyl, protected by European patents with a UK designation, began on the UK market in about 1990, after Servier obtained a UK marketing authorisation. One of those patents was in respect of a process of industrial synthesis of perindopril: EP No 0 308 341 (“341 Patent”). 3. The present action relates to a further patent which was granted to the 3rd defendant (“LLS”) for the alpha crystalline form of the perindopril salt: EP No 1 296 947 (“947 Patent”) which had, among others, a UK designation. The application for the 947 Patent was filed at the EPO on 6 July 2001 and the patent was granted on 4 February 2004. The patent was opposed by ten opponents and following the hearing of the opposition on 27 July 2006, the Opposition Division of the EPO decided to maintain the patent, for reasons which it gave on 21 September 2006. The 1st defendant (“SLL”) was the exclusive licensee under the UK designation of the 947 Patent. 4. In August 2006, LLS and SLL obtained an interim injunction in the Patents Court against the generic supplier Apotex, which had launched a generic version of perindopril in the UK, for alleged infringement of the 947 Patent: [2006] EWHC 2137 (Pat). 5. By a judgment dated 11 July 2007, Pumfrey J held that the 947 Patent was invalid since it lacked novelty, or alternatively was obvious over the 341 Patent: [2007] EWHC 1538 (Pat). On 28 April 2008, for reasons which it gave on 9 May 2008, the Court of Appeal dismissed Servier’s appeal against that decision: [2008] EWCA Civ 445. Those decisions of course only applied to the UK designation of the European patent. 6. In the meantime, an appeal was proceeding before the EPO Technical Board of Appeal. By a decision dated 6 May 2009, the Board of Appeal revoked the European 947 Patent. 7. The present proceedings were commenced in 2011. Originally, along with the present 1st claimant, the Secretary of State for Health, and the 2nd claimant, the authority responsible for making reimbursement to pharmacists in England for prescriptions, there were a further 156 claimants: ten Strategic Health Authorities (“SHAs”) and 146 Primary Care Trusts (“PCTs”) forming part of the English National Health Service MR JUSTICE ROTH NHS v Servier Approved Judgment (“NHS”). Pursuant to a fundamental reorganisation of the NHS, those SHAs and PCTs were abolished with effect from 1 April 2013 and their rights of action vested in the 1st claimant. I shall refer to the claimants simply as “the English Health Authorities” and to these proceedings as the English Health Authorities’ action. 8. The action alleges a series of infringements of both EU and UK competition law for which the English Health Authorities claim that Servier is liable in damages (“the competition law claims”). In particular, it is alleged that Servier entered into a series of agreements with generic manufacturers and suppliers not to enter the market with a generic version of perindopril and/or to withdraw their patent challenges; and that those agreements constituted an infringement of Art 101 of the Treaty on the Functioning of the European Union (“TFEU”) and/or sect 2 of the Competition Act 1998 (“CA”), and also an abuse of a dominant position which Servier held in the UK, and therefore an infringement of Art 102 TFEU and/or sect 18 CA. Moreover, the claim alleges that LLS obtained the grant of the 947 Patent, and further successfully defended it in opposition proceedings, by misleading or dishonest misrepresentations made to the EPO; and that LLS and SLL further repeated or relied on those misrepresentations in obtaining interim relief in the English courts. That alleged conduct, which is expressly pleaded as constituting deceit, is said to be a separate abuse of Servier’s dominant position and thus contrary to Art 102 TFEU and/or sect 18 CA. Further and alternative grounds of abuse are alleged on the basis that the conduct of LLS and/or SLL by which they “obtained, defended and enforced” the rights in relation to the 947 Patent was unreasonable or an abuse of process, and that Servier was “not transparent in its provision of relevant information to the EPO and courts”. However, in addition to these competition law claims, the deceit (but not the other alleged grounds of abuse) is alleged to give rise to a right of action in tort for unlawful means. As I understand it, this tort claim is alleged only against LLS. 9. Separate proceedings have also been commenced against Servier concerning perindopril by the Welsh Ministers and others: claim no HC-2012-000188; and by the Scottish Ministers together with the Department of Health, Social Services and Public Safety for Northern Ireland, and others: claim no HC-2012-000189. I shall refer to these, respectively, as the Welsh Health Authorities’ action and the Scottish/NI Health Authorities’ action. Both those actions are similar to the English Health Authorities’ action in alleging breaches of Art 101 TFEU/sect 2 CA and Art 102 TFEU/sect 18 CA. However, neither goes beyond a competition claim to include a claim for the unlawful means tort. 10. By order of Henderson J (as he then was) of 26 February 2016, the English Health Authorities’ action, the Welsh Health Authorities’ action and the Scottish/NI Health Authorities’ action will be tried together and they are subject to joint case management. 11. Following the commencement of these proceedings, on 9 July 2014, the EU Commission adopted a decision (“the EC Decision”) addressed to SLL, LLS and the 4th defendant finding that they had contravened Arts 101 and 102 TFEU by reason of various agreements made with generic manufacturers and suppliers involving patent settlements or the acquisition of technology, and imposing very substantial fines: Case AT.39612 Perindopril (Servier). The EC Decision has been appealed by the relevant Servier companies to the EU General Court: Case T-691/14 Servier v Commission. An oral hearing in the appeal was held in June 2017 and judgment is pending. There MR JUSTICE ROTH NHS v Servier Approved Judgment is of course the possibility of a further appeal to the Court of Justice of the European Union (“CJEU”). 12. Accordingly, the English Health Authorities’ action now comprises: a) what has become effectively a follow-on claim as regards Art 101/sect 2, and also as regards Art 102/sect 18 insofar as concerns the infringement of Art 102 found by the EC Decision; b) a stand-alone claim as regards the additional grounds of abuse of dominance based on conduct before the EPO and the English court, but if the General Court (or on further appeal, the CJEU) should annul the EC Decision as regards the finding that Servier was dominant, that claim will very probably fall away since the national court cannot take a decision inconsistent with the decision of the European Courts; and c) a free-standing claim for the tort of unlawful means. 13. It is only claim (c) which is the subject of the present application. Since there is no parallel claim in the Welsh Health Authorities’ action or the Scottish/NI Health Authorities’ action, the claimants in those actions have taken no part in this hearing. However, Mr Turner QC, appearing for the English Health Authorities, emphasised that the tort claim is important for his clients since it is not dependent on a finding of dominance and it also goes back earlier in time than the competition law infringements found by the EU Commission, which started in late 2004. The unlawful means claim 14. It is necessary to explain the way this part of the claimants’ case is framed.