English High Court allows Servier to re-amend competition defence against NHS

The English High Court has ruled on a competition case between NHS England and Servier, holding that Servier should be granted permission to re-amend its defence.

Servier is a French pharmaceutical company, specialising in medication for cardiological and rheumatological conditions, as well as diabetes and clinical depression.

The case centres on Servier’s proprietary drug, Coversyl (perindopril), a treatment for heart disease.

According to NHS England, Servier engaged in various forms of anti-competitive conduct between 2003 and 2007.

The alleged conduct prevented the development and marketing of generic versions of perindopril after the expiry of Servier’s main patents.

Servier owned EP 1,296,947, which was a patent for a crystalline form of perindopril.

The patent was held to be invalid in 2007 on the grounds of lack of novelty and obviousness in a battle between Servier and Apotex.

Servier is seeking permission to plead that NHS England has “failed to take all reasonable steps to mitigate their loss, and Servier is not liable to compensate them in respect of loss suffered by reason of this failure”.

Further, Servier is also seeking to plead that, except where the NHS’s claim is based on the intentional tort of interference with its economic interests by unlawful means, “these matters amount to contributory negligence on the part of the English claimants and the damages recoverable should be reduced or extinguished to the extent just and equitable having regard to their share in responsibility for the damage”.

Last, Servier is seeking permission to plead that “these matters broke the chain of causation and/or rendered any damage suffered by the English claimants too remote”.In the initial case, NHS Scotland, Northern Ireland and Wales also sued Servier, but each has agreed to Servier’s application to amend its defence.