Pfizer Ltd v Medimpex Jamaica Ltd, NMF Pharmaceuticals Ltd and Lasco Distributors Ltd

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 04 July 2005
• Judgment citation (vLex): [2005] 7 JJC 0401
• Court: Supreme Court (Jamaica)
• Date: 04 July 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

PFIZER LIMITED

CLAIMANT/RESPONDENT

AND

MEDIMPEX JAMAICA LIMITED

1 ^st DEFENDANT/APPLICANT

AND

NMF PHARMECUTICALS LIMITED

2 ^N DEFENDANT

AND

LASCO DISTRIBUTORS LIMITED

3 ^rd DEFENDANT/APPLICANT

^st

^rd

Application for stay of injunction pending appeal

CIVIL PROCEDURE - Stay of execution

BROOKS, J

1 On March 29, 2005 Mrs. N. E. McIntosh, J. ordered that the defendants to this claim be restrained from conducting any dealings with any product containing the Besylate Salt of Amlodipine untii the trial of the action.

2 Specific restrictions were also placed against Medimpex Jamaica Limited (Medimpex) and Lasco Distributors Limited (Lasco) respectively, in relation to products known as "Normodipine" and "Las Amlodipine", again until the trial of the action. The order was made at the instance of Pfizer Limited (Pfizer) which claims that these particular products were in breach of Pfizer's rights in a patented product.

3 Medimpex and Lasco are both aggrieved by the order of the learned judge and have filed appeals against same. Their present application is for a stay of the effect of the said order until the appeals have been heard. It came before me because Mcintosh J. was not available at the time, she being otherwise engaged.

4 Pfizer has strongly opposed the application and it is for the court to consider the bases on which such a stay may be granted and whether they apply to this case.

5 Background

6 An outline of the background of the matter would enhance the understanding of the issues to be resolved. Pfizer sells its patented product under the brand name Norvasc. Norvasc. according to Pfizer, has been on the Jamaican market since 1994. It is used in the treatment of patients suffering from hypertension and ischemic disease.

7 In 2001, before the grant of the letters patent in Jamaica, Medimpex began and continued thereafter to import and distribute Normodipine. It is not immediately clear when Lasco commenced trading in Las Amlodipine, but in paragraph 5 of an affidavit sworn to on 31 ^st January 2005, Mr. Lester Woolery on behalf of Lasco deposed that Lasco had "for many years sold the products complained of by (Pfizer) in Jamaica".

8 Neither Medimpex nor Lasco are manufacturers of the respective products. The products are imported respectively from Hungary and India.

9 Applicants' submissions

10 Mr. Henriques Q.C. made the submissions on behalf of Lasco. Miss Lightbourne for Medimpex adopted these. The submissions may be summarized as follows:

• 1. The appeal has a good prospect of success.

• 2. Damages are an adequate remedy and are capable of being accurately quantified.

• 3. The prejudice to their businesses and to the public is so significant that the balance of convenience is in favour of the products remaining on the market.

• 4. The grant of the injunction would effectively result in a final order in the claimant's favour.

11 Pfizer's Submissions

12 Miss Phillips Q.C. for Pfizer made submissions which are along the following lines.

• 1. Pfizer is the patent holder and its rights as such should be respected and protected until the court declares otherwise.

• 2. There is no evidence to support the claim that the respective businesses of Medimpex and Lasco will be significantly affected and that there will be loss of employment as a result. This is because both of these companies sell other products.

• 3. There are other anti-hypertensive drugs on the market which are available to the public, and some at lower prices than the infringing products.

• 4. The application is essentially one for a rehearing of the application for the injunction. This should be left to the Appellate Court.

• 5. The court will not usually suspend the operation of the injunction pending appeal, and especially when the defendant is not a manufacturer.

• 6. The injunction will not effectively be a final disposition of the matter; there is an undertaking as to damages and clear case management guidelines governing the preparation for trial.

• 7. Both Medimpex and Lasco have acted in breach of the injunction and as such, have not approached the court with 'clean hands'.

13 Both sides provided authorities in support of their respective positions.

14 Bases on which a stay may be granted

15 An appeal does not operate as a stay of the order or judgment of the court. It is for this court or the Court of Appeal to order the stay, if it is so minded. (See rule 2.14 of the Court of Appeal Rules 2002).

16 By rule 42.13 of the Civil Procedure Rules 2002 (the CPR) a judgment debtor may apply to the court to stay execution of a judgment or order. The rule states as follows:

"A judgment debtor may apply to the court to stay execution or other relief on the grounds of -

• (a) matters which have occurred since the date of the judgment or order; or

• (b) facts which arose too late to be put before the court at trial, and the court may grant such relief, upon such terms, as it thinks just"

17 Though the term "judgment debtor" is not defined in Part 42 of the CPR, it is defined in Part 43 as meaning (for that Part), "a person who is liable to enforcement under (a) judgment or order, even though the judgment or order is not a money judgment". (See rule 43.1.) There being nothing in Part 42 which is inconsistent with the application of such a definition I shall apply it to rule 42.13 for these purposes.

18 I find support for this position in the United Kingdom Civil Procedure Rules (RSC 45.11) which uses more a neutral term:

"Without prejudice to Order 47. rule 1. a partv against whom a judgment has been given or an order made may apply to the court for a slay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms, as it thinks just." (Emphasis mine.)

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