Astrazeneca AB & Astrazeneca UK Limited v Glenmark Pharmaceuticals Europe Limited [2025] EWCA Civ 480

Ø   Treatment of the stages 2-4 of American Cyanamid test: adequacy of damages, balance of convenience and preservation of status quo.

In pharmaceutical patent cases, where a generic company launches its generic product at risk into a market monopolised by a patentee whose patent is under challenge, often damages will not be an adequate remedy for either party because they cannot be properly quantified.

This is because, on the patentee’s part, other generic companies entering the market and causing a price spiral. During the price spiral, if the patentee has to reduce the price for commercial reasons, they will have limited ability to increase it later due to NHS’ resistance. This loss of future earnings cannot be quantified. But this can be different where no other generic company is expected to enter the market: Neurim I.

On the generic company’s side, it will have no track record of selling the product to enable its lost sales to be quantified. Further, if other generic companies are known or will probably enter the market, the market share that the subject generic company would capture will be difficult or impractical to establish. It will be uncertain to what extent the subject generic company would enjoy the benefit of being the first generic mover.

Accordingly, the answer to the American Cyanamid test in such pharmaceutical patent cases as the present one would lie on the stage 4 pf the test, that is the balance of convenience or the balance of the risk of injustice. If all other factors are evenly balanced, the counsel of produce is to preserve the status quo, that is, keeping the generic away from the market during the interim period. The failure of a generic company intending to launch its product to timely “clear the path” is a factor against them at the fourth stage. It is not the appropriate time for a generic company to jump the gun to launch its generic product and engage the scarce court resources when the trial judgment is around the corner: Bayer v Aspire Pharma.

The Court of Appeal is bound by the American Cyanamid test – the sequential approach to the 4 stages of the test. However, in a hearing of an interim injunction application with limited information in a rapidly changing situation, it can be difficult to determine the adequacy of damages for either side: National Commercial Bank of Jamaica v Olint Corp. When the court is thus in “doubt” as to the adequacy of damages for either side, the fourth stage of the American Cyanamid test is triggered.

Limitations on an appeal court revisiting the discretion exercised by the court below it are relaxed when relevant new evidence has come to light at the appeal stage.

Qatar Investment and Projects Development Holding Co & another v Phoenix Ancient Art SA and four others [2025] EWHC 898 (KB)

Ø   Anti-Suit Injunctions (ASIs): grant of a final ASI after the foreign proceedings have been discontinued following an interim ASI.

An order for damages in the sum of reasonable costs, to be assessed on an indemnity basis, incurred by the applicant in the foreign proceedings brought in breach of an exclusive jurisdiction clause may be granted. A final anti-suit injunction (ASI) may be granted even where the foreign proceedings had already been discontinued following an interim ASI granted earlier, if that is necessary to protect the integrity of the English court’s judgments.

Martin Gaig Nicholas & 2 others v Barnes Davison Thomas and another [2025] EWHC 752 (Ch)

Ø   Nuisance injunction.

Ø   Harassment injunction.

An injunction for nuisance is discretionary, even where the nuisance is proved. The court may instead award damages, if that will be an adequate remedy. The various factors the court will consider in deciding whether to grant an injunction or damages include: whether the defendant has secured a planning permission for the work that is said to be a nuisance, public interest, consideration of whether an injunction would be oppressive and whether damages would be an adequate remedy, and the state of mind of the defendant was innocent or malicious.

The court will consider granting an injunction in respect of harassment only where the requirements of the Protection from Harassment Act 1997 are met and it is just and convenient to grant the injunction.