Smithkline 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 the giving of the ‘wrongful undertakings’
Held: The joined party, who had not itself been party to the undertakings, could not claim the benefit of them.


Lord Justice Moore-Bick, The Chancellor of the High Court, Lord Justice Jacob


Times 09-Jun-2006, [2006] EWCA Civ 658, Gazette 08-Jun-2006, [2006] 3 WLR 1146, [2007] Ch 71




England and Wales


Appeal fromSmithkline 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 . .
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 . .
CitedAmerican Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
CitedRegina v Secretary of State for Home Department ex parte Mellor CA 4-Apr-2001
A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the . .
CitedMiller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .
CitedRegina v Medicines Control Agency ex parte Smith and Nephew Pharmaceuticals Limited Intervener: Primecrown Limited ChD 1999
The court considered the right to damages arising from the giving of an undertaking: ‘There is no contract and no tort. The right to damages, if any, stems only from the cross-undertaking’ . .
CitedNWL Ltd v Woods HL 1979
The phrase ‘trade dispute’ was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: ‘It is wrong to attempt to construe . .
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 . .
CitedChiron v Organon (No.10) 1995
The position of third parties or the public who may be affected by the proposed injunction may be allowed for by a court in limited circumstances when asked to exercise its discretion to grant even a final injunction. . .
CitedZ Ltd v A-Z and AA-LL CA 1982
The plaintiffs, an overseas company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
Held: The . .
CitedSearose v Seatrain UK 1981
Third parties who are unconnected with a dispute but who incur expense in complying with an order may specifically be covered by a cross-undertaking as to their costs and otherwise. Robert Goff J said: ‘the banks in this country have received . .
CitedSympson v Juxon 1624
At first instance, judgment had wrongly given possession of land to the plaintiff. Upon successful appeal the defendant had his land restored along with profits made meanwhile: ‘for the plaintiff in the writ of error is to be restored to all that he . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedWestdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
CitedRodger v The Comptoir d’Escompte de Paris 1871
Judgment had been first given, but reversed on appeal. The money had been paid following judgment. The appeal court had ordered the return of the money and the question was whether there should also be interest on the money.
Held: Lord Cairns: . .
CitedTrustee of the Property of F C Jones and Sons (A Firm) v Jones CA 13-May-1996
A bankruptcy order was made in 1984. Under the 1914 Act the trustee in bankruptcy got title to all the assets of the bankrupt as of the date of the act of bankruptcy. So, the trustee owned the partnership assets. The wife drew andpound;11,700 out of . .
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 . .
CitedGreenwood County v Duke Power 1939
(United States) A ‘wrongful’ injunction granted at the behest of a power company had stopped the county from receiving or using Federal funds to build a rival power station. Upon reversal of the decision and dissolution of the injunction the county . .
CitedRegina v Inland Revenue Commissioners, Ex parte Woolwich Equitable Building Society HL 25-Oct-1990
The society challenged the validity of transitional provisions in the 1986 regulations on the ground that they were ultra vires. The House considered the specific presumption against double taxation, and also a power in general terms to make . .
CitedMinnesota Mining and Manufacturing Co v Johnson and Johnson 1976
The court will normally only refuse a stay pending appeal against the award of an injunction if the successful injunctor is willing to give a cross-undertaking in damages should the appeal be successful . .
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 . .
CitedUnited Motor Service v Tropic-aire 1932
(Court of Appeals for the 8th Circuit USA) The defendant said that he had suffered greater damage than the amount set down in a bond provided for security when the plaintiff requested an interim injunction. The action had failed.
Held: Judge . .
CitedHadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
CitedCMS Dolphin Ltd v Paul M Simonet and Another ChD 23-May-2001
The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements . .
CitedBaird Textiles Ltd v Marks and Spencer plc CA 28-Feb-2001
The more embryonic is an oral ‘agreement’, the less likely it is that the parties intended to create legal relations at that stage. For there to be an agreement formed by conduct, there must be a course of dealing from which a contract is . .
CitedArkadelphia Milling v St Louis Southwestern Railway 1918
(United States Supreme Court) A wrongful injunction had restrained a State Railroad Commission from enforcing its shipping tariffs. Two frequent shippers were also enjoined as representative defendants. The injunction was directed against ‘the . .
CitedMetal und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 27-Jan-1989
The claimants sued for negligent advice and secured judgment. The defendant company became insolvent, and so the plaintiff now sued the US parent company alleging conspiracy. The court considered a tort of malicious prosecution of a civil claim, . .
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 . .
CitedThe August Leonhardt CA 1985
For an estoppel by convention, a common understanding must actually be communicated by one party to the other: ‘All estoppels must involve some statement or conduct by the party alleged [to be estoppel on which the alleged representee was entitled] . .
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 . .
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 . .
CitedThe Vistafjord CA 1988
A common assumption which was known to be so by both parties and upon which both acted, was enough to create an estoppel: Bingham LJ ‘Each [of the parties] was fully privy to the thinking of the other. Moreover we have very clear conduct crossing . .
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: . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 06 July 2022; Ref: scu.242186