HC-2013-000089 - [2025] EWHC 2376 (Ch)

Mr Wynn included in his assessment the costs of maintaining MSD-branded social media pages, on the same basis as his inclusion of the costs of maintaining mirror MSD-branded websites. His assessment started with the costs disclosed by MSD of supporting the Merck Animal Health and MSD Animal Health social media pages, and extrapolated from those costs to calculate an estimate for the incremental costs of maintaining other MSD social media pages. His total estimate was £1.07m, taking as the relevant period for each of the Merck/MSD pairs of social media pages the period from launch of the relevant Merck-branded social media page, to the date of launch of the mirror MSD-branded page. In the case of the Merck/MSD Animal Health social media pages, for example, that gave a period from 1 April 2011 to 1 May 2017.

Dr Stec’s primary position was that no social media costs should be included in the calculation of economic benefits, on the basis of an absence of evidence as to the benefit from social media content, and evidence from Ms Lanza suggesting that the MSD social media costs were not separately recorded. In the alternative, Dr Stec said that if this cost were to be included, it would be necessary to consider an appropriate allocation of costs attributable to the UK, as with the avoided costs of maintaining MSD-branded websites. In closing submissions Mr Hollingworth focused on the latter point and did not vigorously pursue a case that there should be no allocation at all for social media costs.

I do not consider that social media costs should be disregarded entirely, as Dr Stec suggested. I have already found Ms Lanza’s evidence to be unreliable. Mr Wynn’s reports, by contrast, set out a careful analysis of the evidence supporting the inclusion of those costs, based on the costs of maintaining the Merck and MSD-branded Animal Health pages. It is reasonable for those costs to be extrapolated to other MSD-branded social-media pages.

Nevertheless, given my conclusions above regarding the UK attribution of the avoided website costs, it is appropriate for the same approach to be applied to avoided social media costs. An apportionment of 40% of the recurring global maintenance costs to the UK gives a revised figure of £427,426.

It is, however, also necessary to adjust in the other direction, on the basis of the duration point discussed at §§138–139 in relation to the maintenance of MSD-branded mirror websites. Mr Wynn’s approach was, as described above, to take as the end-date (for each Merck/MSD pair of social media pages) the date on which the mirror MSD-branded social media page was launched. Applying the analysis set out above, however, the reasonable approach would have been to base the negotiation on the avoided costs throughout the notional period of the licence. On that approach the revised figure above should be uplifted to a total of £781,703.

Mr Brandreth in his closing submissions (again) argued that the court should adopt a higher figure of £2m for social media costs, roughly doubling Mr Wynn’s figure. The only explanation for doing so was that Mr Wynn’s calculations were based on MSD’s disclosure, which Mr Brandreth said was incomplete. I do not accept that submission. The calculations of both experts were produced on the basis of a very detailed analysis of extensive evidence. Merck could have sought further disclosure if needed for the purposes of Mr Wynn’s report, and there was indeed considerable correspondence between the parties on the disclosure given, which eventually resolved matters by agreement. It is far too late for Mr Brandreth to seek to rely on evidential gaps in support of a submission that Mr Wynn’s figure should be uplifted by an entirely arbitrary and speculative amount.

I therefore consider that the appropriate figure to use for the avoided social media costs is £781,703 (prior to any adjustment for inflation and discounting).