Senior Courts Costs Office

No.2 of 2005

Smithkline Beecham Plc v Apotex Europe Ltd

16 December 2004

Court of Appeal (Ward, Arden and Jacob LJJ)

The Court of Appeal had to consider the principles to be applied in a complex patent case, when deciding the appropriate order as to costs, in connection with a considerable number of issues and sub issues which had been considered, when arriving at the overall resultant proceedings that the patent had not been infringed, but was not invalid.

One particular point which exercised the Court of Appeal was Section 65 of the Patents Act 1977, which appeared to preclude them from making the costs order which they felt appropriate to reflect the ultimate outcome. Their Lordships held that although Section 65 was outdated, it could not be construed other than in the way the paying party sought, but nevertheless a fairer result could be achieved by recourse to the general powers of the court under CPR.