Chiron Corporation v Murex Diagnostics Ltd

JurisdictionEngland & Wales
Judgment Date06 October 1994
Date06 October 1994
CourtCourt of Appeal (Civil Division)

Court of Appeal

Before Lord Justice Balcombe, Lord Justice Staughton and Lord Justice Rose

Chiron Corporation
and
Murex Diagnostics Ltd

Practice - European Court of Justice - referral after appeal

Reference to Europe is refused after appeal

In considering whether to grant leave to appeal, the House of Lords acted in a judicial and not in an administrative capacity; its power to grant leave to appeal was therefore a judicial remedy within the meaning of that term in article 177 of the Treaty of Rome (Cmnd 5179-II)

Where no reference was made to the European Court of Justice by the Court of Appeal prior to giving judgment, it was functus officio and it could not grant a renewed application for a reference after a petition to appeal had been refused by the Appeal Committee of the House of Lords.

The Court of Appeal so held in refusing a renewed application by the defendant, Murex Diagnostics Ltd, for a reference to the European Court of Justice under article 177 of the Treaty of Rome.

Article 177 provides: "The Court of Justice shall have jurisdiction to provide preliminary rulings concerning: (a) the interpretation of this Treaty … Where any such question is raised in a case pending before a court or tribunal of a member state, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice."

Mr Alastair Wilson, QC and Miss Jessica Jones for Murex; Mr David Kitchin, QC, and Mr David Anderson for Chiron Corporation.

LORD JUSTICE BALCOMBE said that on November 6, 1992 Mr Justice Aldous, in an action for infringement of a patent in the field of biotechnology, struck out several paragraphs of the defence and refused leave to amend others. All related to a European law defence based on article 86 of the Treaty of Rome.

No application was made to the judge for a reference under article 177 of the Treaty.

The defendant then appealed to the Court of Appeal. The defendant contended that, although a number of issues arising on the appeal raised issues of EEC law which had not yet been clearly resolved by decisions of the European Court, it would be quite possible for the defence to be decided in the defendant's favour without a reference being needed, and that, for that reason no immediate reference was needed. Nevertheless, if a final order were to be made striking out the defence a reference was mandatory under article 177.

That position was maintained during the...

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