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

Both parties relied on expert evidence as to the quantum of damages based on a notional licence granted by Merck to MSD. Merck’s expert was Andrew Wynn, a senior managing director at FTI Consulting, where Mr Wynn works as an economist and financial analyst. He has over 25 years of experience in providing economic and financial advice, including significant experience of conducting financial analysis in intellectual property disputes. MSD’s expert was Jeffery Stec, a managing director at Berkeley Research Group, where he leads its intellectual property practice. He also has over 25 years of experience in economic consulting, including advising on trade mark disputes and computation of damages in various forms.

Each expert submitted an initial expert report followed by a second (reply) report. Following a meeting between the experts, a joint statement was produced setting out the areas of agreement and disagreement. Each expert then produced a 10-page “expanded summary” of their position on the areas of disagreement. These were useful documents for the purposes of pre-reading, but ultimately the cross-examination of the experts focused on the detail of their analysis which was set out in the far longer individual expert reports.

Mr Wynn favoured the valuation of a notional licence by reference to comparable licences. That approach was robustly criticised by Dr Stec in his evidence, as being entirely unreliable. Dr Stec’s view was that the only reliable basis for assessment of damages was an analysis of the economic benefits and costs to the parties, comparing the position as it was with the position had the breaches of contract and trade mark infringements not occurred. Mr Wynn’s view was that the economic benefits approach did not fully capture all the relevant factors in the hypothetical negotiation, so he carried out that analysis in the alternative only by way of a cross-check.

As described in detail further below, Mr Wynn eventually accepted in his cross-examination by Mr Hollingworth that his comparables analysis was based on a study that was unreliable and did not produce a statistically meaningful result. It is very unfortunate that this acknowledgement came so late in the day, because it completely undermined Mr Wynn’s evidence on this point. In the light of that belated concession, I do not consider that I can place any weight on Mr Wynn’s comparables analysis.

That left the economic benefits approach favoured by Dr Stec. Mr Wynn had considered that approach in the alternative, albeit that this was not the approach that he preferred. His calculation of economic benefits was greater than that of Dr Stec, but it was still far below his assessment based on his comparables analysis. Merck therefore sought to uplift the figure produced by the economic benefits approach, by reference to evidence and analysis not provided by Mr Wynn, but which Mr Brandreth sought to introduce through his cross-examination of Dr Stec.

I was, however, not willing to permit the cross-examination of Dr Stec on the basis of evidence and analysis not discussed between the experts, nor considered previously by Dr Stec, nor explored with Mr Wynn in his oral evidence. Where there has been a lengthy expert report process, including a meeting of experts and a joint expert statement, the court is entitled to expect that the parties’ cases, on the issues considered by the experts, will be presented on the basis of the evidence that emerges through the expert report process. As noted in my judgment in Cabo v MGA [2025] EWHC 1451 (Ch), §§49–50, the joint meeting of the experts provides an opportunity for the experts to revise their opinions as appropriate, and the court expects the experts to engage properly and objectively with the evidence of the other side. If an expert fails to do so, but then changes their position on a particular point during the course of cross-examination, the court must then determine the case having regard to that change of position. The party relying on that expert cannot expect the court to allow it to attempt to salvage its position by advancing an entirely new case at that stage, on the basis of an analysis that has not previously been considered by either of the experts in their reports.

I have, therefore, approached the economic benefits assessment on the basis of the evidence of Dr Stec and Mr Wynn, as set out in their expert reports and explored in their cross-examination. On that issue, I consider that both Dr Stec and Mr Wynn provided evidence that was generally helpful, albeit that they were at times both somewhat defensive in their cross-examination.