Les Laboratoires Servier v Apotex Inc & ors [2014] UKSC 55
The latest instalment in the long-running Servier v Apotex case reached the Supreme Court. In a ruling handed down on 29th October the Court upheld the decision of the Court of Appeal that Apotex’s claim for damages under a cross-undertaking was not barred as a matter of law by the principle ex turpi causa non oritur actio (the ‘illegality defence’).
Although Apotex’s claim was based on acts which would have been an infringement of Servier’s Canadian patent, this was not an act of sufficient turpitude to engage the defence. However, the majority of the Supreme Court rejected the reasoning of the Court of Appeal that the application of the defence required an intense analysis of the surrounding circumstances to find a ‘just and proportionate response’ to the illegality. They confirmed that the defence was a strict rule of law. Iain Purvis QC appeared for Servier.