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So Long Blues

28 February 2020. Published by Ben Mark, Partner and Greg Burke, Associate

Following our previous IP hub update, Glaxo has suffered fresh survey woes.

Glaxo already had permission to adduce surveys in a claim against Glenmark. However, prompted by the judge's criticisms of the three-step method in the Sandoz case, Glaxo applied to adduce further surveys. These surveys would be based on the Enterprise v Europcar methodology in the EU and the three-step method in the UK. 

Arnold LJ rejected Glaxo's application. The overriding objective of CPR 1.1, to deal with cases "justly and at proportionate cost", means that parties cannot simply put all the evidence they want before the court, even in a high-value dispute. Turning to the costs/benefit analysis from Interflora, the further surveys would almost double the costs and, as a matter of general principle, parties should only conduct one survey per territory. 

This judgement will encourage practitioners to think hard about which methodology to use. Beware of the three-step method in particular. The survey questions in Enterprise v Europcar appear to be a better model.

Click here to read the previous article.