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

In my judgment AstraZeneca’s application for an interim injunction pending the determination of an appeal to the Supreme Court should be refused because an appeal has no real prospect of success, and its application for an interim injunction pending the determination of an application to the Supreme Court for permission to appeal should be refused because that application has no real prospect of success. As stated above, there is no arguable point of law that would enable AstraZeneca to succeed on an appeal. Even if AstraZeneca were able to persuade the Supreme Court that the correct standard for plausibility is the “ab initio implausibility” standard, that would not avail AstraZeneca because the Patent does not satisfy even that standard. Furthermore, arbitrary selection is an independent objection to the validity of the Patent. Dr Tappin KC held that the Patent was invalid for that reason applying established principles, and this Court has affirmed that decision.

Because there is no real prospect of success, which in this context equates to there being no serious issue to be tried for the purposes of the American Cyanamid approach, it is not necessary to consider the rival arguments on adequacy of damages or on the overall balance of the risk of injustice.

Although I would refuse AstraZeneca’s application for the reasons given in paragraph 20 above, that is not the end of the matter. This Court must allow for the possibility that we are mistaken in our assessment of AstraZeneca’s prospects of success, and in particular its prospects of success in obtaining permission to appeal from the Supreme Court. In my judgment it is just and convenient to grant AstraZeneca an interim injunction for a period of 14 days to enable AstraZeneca to make an urgent application to the Supreme Court. Not only is the Supreme Court best placed to determine whether AstraZeneca’s application for permission to appeal has a real prospect of success, but also the Supreme Court alone has power to decide whether expedition of the application is warranted, and if so what measure of expedition should be applied.

Glenmark, Teva, Viatris, Sandoz and Bestway argued that no interim injunction should be granted, even for so short a period as 14 days, because: (i) damages would be an adequate remedy for AstraZeneca; (ii) even if they would not, damages would be an even less adequate remedy for Glenmark, Teva, Viatris, Sandoz and Bestway; and (iii) the overall balance of the risk of injustice favoured refusal of an injunction.

We declined to hear full oral argument on points (i) and (ii). My reasons for taking that course are as follows. First, none of the evidence (or, consequentially, the arguments in the parties’ skeleton arguments) addressed this time period. Glenmark, Teva, Viatris, Sandoz and Bestway argued that this necessarily meant that AstraZeneca must fail, because it had failed to address this possibility in its evidence. I disagree, because the blind spot was common to all parties. Furthermore, it is doubtful that it would realistically have been possible for the parties to produce robust evidence as to the likely effects of the grant or refusal of an injunction for such a short period of time.

Secondly, and perhaps more importantly, I do not consider that it is appropriate for this Court to undertake the exercise urged upon it by Glenmark, Teva, Viatris, Sandoz and Bestway in any event. In granting an injunction for 14 days, this Court is doing no more than preserving the status quo for a short further period in order to enable the Supreme Court to make whatever order it deems just and convenient. As at 9 April 2025 this Court, and as at 28 May 2025 Judge Hacon, considered that the balance of the risk of injustice favoured the grant of interim injunctions. It can be seen from both judgments that an important factor was preservation of the status quo. If the hearing of the substantive appeal had been listed only seven days later than it was, and if the preparation of the judgments following that hearing had taken only seven days longer than it did, the injunction granted by Judge Hacon would have run for 14 days longer than it in fact did. In these circumstances the decision to grant AstraZeneca an injunction for a further 14 days cannot require the determination of highly contested issues as to adequacy of damages, particularly in circumstances where the evidence is insufficiently granular to enable any realistic assessment to be made of whether the effects contended for on either side will manifest themselves over so short a period. Accordingly, the overriding consideration must be to hold the ring by preserving the status quo for a further 14 days to enable the Supreme Court to make whatever order it considers just and convenient.

As for point (iii), Glenmark, Teva, Viatris, Sandoz and Bestway relied upon the relative merits of the parties’ cases, and in particular the fact that AstraZeneca has lost twice, as being decisive if the balance of the risk of injustice was otherwise even. It can be seen from my reasoning in paragraph 20 that I agree that this Court’s assessment of the merits of AstraZeneca’s intended application to the Supreme Court for permission to appeal leads to the conclusion that no interim injunction should be granted pending the determination of that application. As explained in paragraph 22 above, however, we must allow for the possibility that our assessment is mistaken. Thus our view of the merits cannot be a bar to the grant of an interim injunction for 14 days if that is otherwise appropriate.