![]() ![]() ![]() Lord Sumption explained that ex turpi causa principle "precludes the judge from performing his ordinary adjudicative function in a case where that would lend the authority of the state to the enforcement of an illegal transaction or to the determination of the legal consequences of a legal act". Lord Sumption noted that the defence of illegality was already well-established when Lord Mansfield articulated it in his statement of principle, in Holman v Johnson (1775) 1 Cowp.341, 343, beginning "No court will lend its aid to a man who founds his cause of action on an immoral or illegal act…". This was a process, discretionary in all but name, whose outcome would have been exceptionally difficult for either party's advisers to predict in advance", which was "contrary to established legal principle". In the Supreme Court, Lord Sumption (with whom Lord Neuberger and Lord Clarke agreed), rejected the approaches of the lower courts, noting that their differing answers both depended "not on the character of the illegality but on largely subjective judgments about how badly Apotex had behaved and how much it mattered. Instead, he held that "it all depends on the precise circumstances ". In the Court of Appeal, which was bound by the House of Lords' decision in Tinsley v Milligan 1 AC 340, Etherton LJ rejected Servier's argument that patent infringement was necessarily turpitude and also Apotex's argument that it never was. Regarding the first issue, Servier succeeded at first instance before Arnold J., whereas Apotex succeeded in the Court of Appeal. The second of the issues was stayed pending the assessment of damages in Canada and Apotex later conceded that any damages awarded in the Canadian proceedings should be deducted from the award payable in the UK irrespective of the fate of the first issue. In assessing Apotex's loss of profit, the damages for infringement to which Servier would have been entitled in the Canadian proceedings should be treated as an additional cost of manufacture.According to the doctrine ex turpi causa non oritur actio, it was contrary to public policy for Apotex to recover damages for being prevented from selling a product whose manufacture in Canada would have been illegal there as an infringement of Servier's Canadian patent.Servier was eventually permitted to amend its defence to Apotex's damages claim, to argue that: Late in the High Court damages inquiry, Apotex was held in Canada to have infringed, by the manufacture of generic perindopril tablets, Servier's Canadian patent for the compound (perindopril), which remained in force in Canada although it had expired in the UK. Apotex's position was that but for the interim injunction obtained by Servier, it would have sold an additional 3.6million packs of perindopril erbumine tablets in the UK, the active ingredient for which would have been manufactured in Canada by a group company. Apotex claimed for damages under Servier's cross-undertaking in damages. The patent was later held to be invalid, although it would have been infringed. In 2006, Servier obtained an interim injunction restraining Apotex from making sales in the UK of its generic perindopril erbumine tablets, which it was alleged infringed Servier's formulation patent. The Supreme Court has held that the infringement of a patent does not constitute "turpitude" for the purposes of the defence of illegality ("ex turpi causa non oritur actio"). Les Laboratoires Servier & another v Apotex Inc UKSC 55. ![]() The Supreme Court has held that the infringement of a patent does not constitute "turpitude" for the purposes of the defence of illegality ("ex turpi causa non oritur actio"), in Les Laboratoires Servier & another v Apotex Inc UKSC 55. Luke Kempton, Patrick Duxbury, Paul Inman ![]()
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