CA-2025-001040-A - [2025] EWCA Civ 924

Although this Court has dismissed AstraZeneca’s appeal, there is no dispute that it retains jurisdiction, as a court of equity, to grant an injunction where it is just and convenient to do so, including an interim injunction until the determination of an appeal by AstraZeneca to the Supreme Court, or, failing that, an application by AstraZeneca to the Supreme Court for permission to appeal, or, failing that, an application by AstraZeneca to the Supreme Court for an interim injunction pending the determination of its application for permission to appeal.

Although we are concerned with a prospective appeal from this Court to the Supreme Court, I consider that the applicable principles mirror those which apply to an appeal from the High Court to this Court. The fundamental principle is that the court should, as far as possible, “so arrange matters that, [if and] when the appeal comes to be heard, the appellate court may be able to do justice between the parties”: Minnesota Mining and Manufacturing Co v Johnson & Johnson Ltd [1976] RPC 671 at 676 (Buckley LJ, my interpolation).

In Novartis AG v Hospira UK Ltd [2013] EWCA Civ 583, [2014] 1 WLR 1264, Floyd LJ said at [41]:

“I would summarise the principles which apply to the grant of an interim injunction pending appeal where the claimant has lost at first instance as follows. (1) The court must be satisfied that the appeal has a real prospect of success. (2) If the court is satisfied that there is a real prospect of success on appeal, it will not usually be useful to attempt to form a view as to how much stronger the prospects of appeal are, or to attempt to give weight to that view in assessing the balance of convenience. (3) It does not follow automatically from the fact that an interim injunction has or would have been granted pre-trial that an injunction pending appeal should be granted. The court must assess all the relevant circumstances following judgment, including the period of time before any appeal is likely to be heard and the balance of hardship to each party if an injunction is refused or granted. (4) The grant of an injunction is not limited to the case where its refusal would render an appeal nugatory. Such a case merely represents the extreme end of a spectrum of possible factual situations in which the injustice to one side is balanced against the injustice to the other. (5) As in the case of the stay of a permanent injunction which would otherwise be granted to a successful claimant, the court should endeavour to arrange matters so that the Court of Appeal is best able to do justice between the parties once the appeal has been heard.”

Although Floyd LJ did not say so in this paragraph, it can be seen from his reasoning in the rest of his judgment, and from the cases to which he referred, that, in considering “the balance of hardship” in cases of this kind, the court should normally adopt the approach set out by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 407G-409D. I discussed this, and its application to cases concerning pharmaceutical patents, in my judgment of 16 April 2025 at [18]-[36].