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

Merck’s written closing submissions on the comparability point maintained essentially the fallback position as set out by Mr Wynn in his cross-examination, described at §104 above. Mr Brandreth sensibly said no more about the point in his oral closing submissions.

For the reasons set out above, I reject that position. Merck’s comparables analysis turned on its reliance on the 0.33% figure adopted by Merck for its intragroup healthcare licences, but that figure was derived from an EY analysis which was statistically meaningless. Since Mr Wynn was unable to provide any evidence as to where the correct starting point figure should lie, as between 0% and 0.33%, if the 0.33% figure was abandoned, there is ultimately no evidential support for the adoption by the court of any specific figure at all pursuant to a comparables analysis. Any attempt to do so would be nothing more than wild speculation.

In light of the problems set out above, I reject Mr Wynn’s comparables analysis as a basis for the assessment of a notional licence fee in this case.