Les Laboratoires Servier v Apotex Inc
The illegality defence applies only to criminal acts and quasi-criminal acts, not to the infringement of private rights such as a foreign patent.
Facts
Servier held patents for a drug used to treat high blood pressure. Apotex manufactured a generic version of the drug in Canada and imported it into the UK. Servier obtained an interim injunction against Apotex, giving a cross undertaking to compensate Apotex if the injunction turned out to have been wrongly granted. The UK patent was later held invalid, and Apotex claimed damages under the undertaking. Servier argued that Apotex's claim was barred by illegality, because the drug had been made in Canada in infringement of a Canadian patent held by Servier.
Legal principle
The Supreme Court held that the illegality defence did not apply, so Apotex could recover damages under the undertaking. Lord Sumption said that the illegality defence applies to acts that are criminal or quasi-criminal, including dishonest or corrupt acts and some acts against the public interest, but not to the infringement of private rights, such as a breach of contract, a tort or the infringement of a patent. The infringement of Servier's Canadian patent was not the kind of conduct that engaged the public policy behind the illegality defence.
Related cases on illegality and restraint of trade
- Archbolds (Freightage) Ltd v S Spanglett Ltd [1961] 1 QB 374
- Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269
- Fitch v Dewes [1921] 2 AC 158
- Herbert Morris Ltd v Saxelby [1916] 1 AC 688
- Holman v Johnson (1775) 1 Cowp 341
- Re Mahmoud and Ispahani [1921] 2 KB 716
- Mason v Provident Clothing and Supply Co Ltd [1913] AC 724
- Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535
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