Smithkline Beecham Plc and others v Apotex Europe Ltd and others: PatC 26 Jul 2005

Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against parties unwilling to grant them. ‘Since a cross-undertaking cannot be imposed, it follows that a fortiori it cannot be imposed retrospectively. ‘ and ‘the proper interpretation of a cross-undertaking is not a question of divining the mutual understanding of the parties to the litigation, for the terms of the cross-undertaking are a matter for the court. Equally, because the cross-undertaking is given to the court, it may be enforced by one who is not a party to the action, if the cross-undertaking is given for his benefit.’ and ‘at least as at 2002, it could not be said that it was implicit in any application for an interim injunction (other than a freezing or search order) that the applicant must be taken to have offered a cross-undertaking in favour of third parties who were not defendants to the proceedings.’ Applications save under estoppel were struck out or dismissed.


Lewison J


[2005] FSR 44, [2006] 2 All ER 53, [2006] IP and T 307, [2005] EWHC 1655 (Ch), Times 10-Aug-2005




England and Wales


CitedW v H (Family Division: without notice orders) FD 10-Jul-2000
Munby J considered the practice to be followed in the Family Division when injunctions are granted ex parte and without notice against third parties in ancillary relief cases.
Held: The court traced the history of undertakings in damages give . .
CitedTucker v New Brunswick Trading Company of London CA 1890
An action was brought against three defendants, Matthews, Lamplough and the New Brunswick Trading Company of London, to restrain the company from confirming in general meeting certain agreements between the company and Matthews and Lamplough. An . .
CitedThe Mito 1987
The court discussed the requirement of undertakings in damages from a party seeking an interim injunction: ‘When such security is originally sought it is sought as a condition for the grant of the injunction, in other words the plaintiff is told if . .
CitedColledge v Crossley CA 18-Mar-1975
The Master of the Rolls discussed undertakings given to support injunctions: ‘. that it was unfortunate that the undertaking in damages was not put into the original order. It was an automatic undertaking which was invariably inserted when an . .
CitedAttorney-General v Albany Hotel Co 1896
The court considered the undertakings to be inserted in ex parte interim injunction applications: ‘Upon drawing up an order for an interlocutory injunction the registrar invariably inserts such an undertaking on the part of the plaintiff, even . .
CitedF Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
CitedMiller Brewing Co v Ruhl Enterprises Ltd and another ; Miller Brewing Co v Mersey Docks and Harbour Co amd Others ChD 23-May-2003
The claimant obtained an interim injunction in respect of alleged infringement of its trade marks in beers brewed under licence by the respondents. They said the beers produced were of inferior quality, and threatened the brand. The grant of such . .
CitedAllied Irish Bank v Ashford Hotels Limited and Ashford Hotels Limited v Higgins; Tyree and Emblem Bv CA 8-May-1997
The court asked itself whether it had power to require a cross-undertaking in favour of third parties as a condition of appointing a receiver.
Held: Phillips LJ: ‘The Mareva injunction is a comparatively recent addition to the armoury of the . .
CitedBerkeley Administration Inc v McClelland CA 1990
There is no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole. The court discussed who had the benefit of cross undertakings given . .
CitedKetteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .
CitedRe Inchcape 1942
The court had been called upon to decide the domicile of Lord Inchcape at the date of his death. Counsel then asked for the costs of all parties to be paid by the estate. However, costs had been incurred before the issue of proceedings and these . .
CitedRepublic of India and Another v India Steamship Co Ltd (Indian Endurance and Indian Grace) (No 2) HL 23-Oct-1997
When a action in rem against a ship was in fact parallel to an action in personam begun in India and awaiting a decision; an action was not to be allowed here.
Lord Steyn: ‘It is settled that an estoppel by convention may arise where parties to . .
CitedExpert Clothing Service and Sales Ltd v Hillgate House Ltd CA 1985
Landlords took possession after a successful, at first instance, forfeiture claim. The tenant succeeded on appeal and then brought a claim for the wrong of breach of the covenant for quiet enjoyment.
Held: The lease had been in existence all . .
CitedThe Indian Endurance HL 1986
The House considered how an estoppel by convention arose: ‘It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one . .
CitedNational Australia Bank Ltd v Bond Brewing Holdings Ltd 1991
(Supreme Court of Victoria) The court had appointed a receiver without requiring a cross-undertaking in damages. The order was then set aside, and compensation was sought. There had been no cross-undertaking.
Held: If it had power to award . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
CitedAlfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
CitedRegina v Medicines Control Agency ex parte Smith and Nephew (Primecrown Ltd intervening) ChD 1999
The court considered liability to third partries under a cross-undertaking given to the court: ‘Whether the recoverable damage is that which is foreseeable by the plaintiff or that which is directly caused by the injunction is not in point. None of . .

Cited by:

Appeal fromSmithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 01 July 2022; Ref: scu.229014