Boehringer Ingelheim GMBH & Company KG v Munro Wholesale Medical Supplies Ltd
| Jurisdiction | Scotland |
| Judgment Date | 15 January 2004 |
| Docket Number | No 36 |
| Date | 15 January 2004 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Nimmo Smith
Interdict - Interim interdict - Balance of convenience - Whether party likely to succeed in defence
The pursuers manufactured and distributed a pharmaceutical product. The defenders, who traded as wholesalers of pharmaceutical products in the United Kingdom, proposed to import the product from other European markets, repackage it and sell it to retail pharmacists in the United Kingdom. The pursuers sought interim interdict. The Lord Ordinary granted interim interdict and the defenders reclaimed. The defenders argued that the Lord Ordinary had erred in the application of the law to the factual circumstances, in that he had not based his conclusion on the true consideration, which was whether the defenders did not have effective access to the market or a substantial part of it.
Held that: (1) as the Lord Ordinary erred in relying on the wrong consideration it was necessary for the court to consider of new what interlocutory order was appropriate (para 14); (2) as the defenders had conceded that the pursuers had a prima facie case on the merits, the court would require to consider the balance of convenience (para 15); (3) in most cases the balance of convenience would be resolved by considerations such as whether irrecoverable loss or irreparable inconvenience was likely to be sustained by a party who, having been denied the interim disposal he sought, was ultimately successful; but in the present case determination on that basis was not open as the Lord Ordinary had held that the matter was finely balanced (para 16); (4) in the circumstances the court was not persuaded that it was very likely that the defenders would succeed in their defence at the end of the day (para 16, 17); and appealrefused.
NWL Ltd v WoodsWLR [1979] 1 WLR 1294 commented upon.
BOEHRINGER INGELHEIM PHARMA GMBH & CO KG raised an action against Munro Wholesale Medical Supplies Ltd concluding for interdict and interim interdict. On 12 August 2003, the Lord Ordinary (Nimmo Smith), after hearing parties, pronounced interim interdict. The defenders reclaimed.
The cause called before an Extra Division comprising Lord Marnoch, Lord Hamilton and Lord Bonomy for a hearing on the summar roll.
Cases referred to:
Boehringer Ingelheim KG and Others v Swingward Ltd and OthersELR [2003] Ch 27
Bristol-Myers Squibb and Others v Paranova A/S [1996] ECR I-3457
NWL Ltd v WoodsWLR [1979] 1 WLR 1294
Shell UK Exploration and Production Ltd v Innes 1995 SLT 807
Toynar Ltd v Whitbread & Co plc 1988 SLT 433
At advising, on 15 January 2004, the opinion of the Court was delivered by Lord Hamilton -
OPINION OF THE COURT -[1] The pursuers and respondents ('BI') are part of a group of companies which develops, manufactures and distributes pharmaceutical products for human use. BI is the proprietor of Community trade mark 'SPIRIVA', registered in April 1998, under which it markets a pharmaceutical product, a compound of tiotropium, ('the product') used in the treatment of chronic obstructive pulmonary disease. The product, which takes the form of capsules of powder for inhalation, is available in the United Kingdom only on medical prescription. It is inhaled from a device with the name Handihaler. The approved dose is one capsule daily. The capsules are supplied in sealed blister strips of ten capsules each. BI sells in the United Kingdom under the trade mark SPIRIVA combopacks, each containing one Handihaler device and 30 capsules, and refill packs of 30 capsules. It sells combopacks and refill packs under the same mark in several other European countries, including Germany where refill packs containing 60 capsules are available for purchase.
[2] The defenders and reclaimers ('Munro') trade as wholesalers of pharmaceutical products in the United Kingdom. Munro imports such products from other European markets and sells them to retail pharmacists here; as such it is a 'parallel importer'. It proposes to import, inter alia, refill packs of 60 capsules of the product from Germany, to relabel the blister strips and to rebox and sell them in refill boxes containing 30 capsules each. It has obtained from the Medicines and Healthcare Products Regulatory Agency a product licence in respect of the marketing in the United Kingdom of the product so reboxed. The reboxing proposed by Munro entails applying to the outside of each new box certain printed material, including the SPIRIVA trade mark.
[3] Munro gave to BI notice of its intention to market in the United Kingdom the product so reboxed. BI objected, and continues to object, to Munro's proposal. BI maintains that implementation by Munro of its proposal without BI's consent would infringe its rights in the trade...
To continue reading
Request your trial
-
H.k. V. Secretary Of State For The Home Department
...to the balance of convenience was very familiar. It applied to interim interdict: Boehringer Ingelheim GMBH v Munro Medical Supplies Ltd 2004 SC 468, but also to other interim remedies: Mackenzie's Trustees v Highland Regional Council 1994 SC 693, Napier v Scottish Ministers, 26 June 2001, ......
-
West Coast Capital (lios) Limited For An Order Under Section 994 Of The Companies Act 2006 Including Interdict Ad Interim
...in averment and argument as one of the factors going to make up that balance: Boehringer Ingelheim GmbH v Munro Medical Supplies Ltd. 2004 SC 468 at para.[16], applying dicta of Lord Fraser of Tullybelton in NWL Ltd. v Woods [1979] 1 WLR 1294 at 1310; but it should guard against the temptat......
-
Schuh Limited V. Shhhh Limited
...Limited v Woods [1979] 1 WLR 1294 at p.1310, a passage approved and applied in Boehringer Ingelheim GmbH v Munro Medical Supplies Limited 2004 SC 468), with the caveat that it is neither possible nor appropriate at an interim stage to weigh in a fine balance the respective strength of the p......
-
Ralph Lauren London Limited V. The Mayor And Burgesses Of The London Borough Of Southwark As Trustee Of The London Borough Of Southward Pension Fund
...Limited v Woods [1979] 1 WLR 1294 at p.1310, a passage approved and applied in Boehringer Ingelheim GmbH v Munro Medical Supplies Limited 2004 SC 468, with the caveat that it is not possible nor appropriate at an interim stage to weigh in a fine balance the respective strength of the partie......