It was never meant to be easy but a recent decision of the UK's High Court has demonstrated just how hard it is to pursue anti-trust claims before the UK's civil courts. On 11 February 2013, Mr Justice Roth – who prior to becoming a judge in the High Court's Chancery Division was a distinguished competition laws barrister – dismissed an application for an injunction brought by Chemistree Homecare Limited ("Chemistree" or "Claimant"), a distributor of pharmaceutical products, against AbbVie Limited, a seller of an HIV treatment ("AbbVie" or "Defendant").
At the heart of the dispute were issues relating to the sale of a patent-protected protease inhibitor, called "Kaletra", used as an element, in combination with other antiretroviral drugs, in the treatment of patients with HIV. Chemistree, a UK-based pharmacy business, provided home care services to public-sector hospitals part of which involved the administration of drugs, including Kaletra, to patients at home.
The Claimant and Defendant had been in business together ever since the Claimant had won a contract, in 2005, for the provision of home-delivery services on behalf of London-based hospitals. Kaletra, manufactured by a sister-company of the Defendant, was one of the drugs supplied by the Claimant under that contract.
Over their course of dealing, AbbVie started to detect marked changes in the volume and nature of Chemistree's orders. In a very short space of time the order volumes doubled and a wider range of different formulations were being requested. Clearly suspecting that the Claimant had found a market outside of the London-hospitals allocation, the defendant demanded information regarding the identity and location of those being treated. Eventually, after protracted and increasingly heated correspondence, the Claimant admitted that it had been selling Kaletra on the wholesale market and, in particular, to Lithuania. AbbVie responded by explaining to Chemistree that it had not been authorised to sell as wholesaler, a segment of the market that AbbVie had decided to service itself, and that thenceforward it would only supply Chemistree with amounts sufficient for Chemistree to service the London market for which it had been authorised. The Claimant itself reacted, shortly afterwards, by filing suit in which it requested injunctive relief – specifically, an order requiring the defendant to resume full supplies of Kaletra - against AbbVie on the grounds that the reduced volumes amounted, effectively, to a refusal to supply, an act that, according to the Claimant, constituted an abuse of AbbVie's dominant position and, thereby, an infringement of the prohibitions contained in applicable UK and EU competition law.
"Standalone" actions (i.e. cases brought without the intervention of the competition enforcement bodies) are relatively rare events in the UK. Government is currently trying to find ways to stimulate civil litigation in this area, in an effort, it would appear, to "privatise" the enforcement function. The Chemistree action has, as a result, added poignancy in light of these political developments.
The test applied for the grant of an injunction before the courts in England and Wales is two-fold: (i) the Claimant has to have a real prospect of success at the full trial; and (ii) the issuing of interim relief must carry with it the least risk of injustice as between the parties. In this case, the Court's decision turned on the first limb. In his judgment, the Judge ruled, in that regard, that there was little likelihood that the Claimant would be able to demonstrate that AbbVie was "dominant" and thereby dismissed the Claimant's application.
The court's decision graphically illustrates the reasons for the paucity of UK anti-trust litigation and the obstacles that confront plaintiffs, particular smaller under-resourced companies, when they pursue such claims. In this case, the court agreed that, theoretically, it is possible to have a single produce market (i.e. a product so unique that in effect it creates a market of its own) although it ruled that, on the evidence before it, one did not exist in this instance. The Defendant presented data to show that not only did Kaletra have to be taken by patients in combination with other drugs but also that no less than eight alternative so-called third agents were currently available. The Claimant sought to challenge this fact by saying that whilst this was true for so-called "naïve" or new patients it was not the same for patients who had been taking HIV treatments for extended periods of time. Switching for that latter group of patients was not recommended. The court, however, chose to downplay that evidence, provided by way of a witness statement, on the basis that the witness concerned was not a qualified clinician. Judge Roth then went on to conclude:
"[The Claimant] cannot, in my judgment, be entitled to interim relief on a merely speculative basis in the hope that some evidence giving it a serious question to be tried or real prospect of success will emerge on eventual disclosure."
It is, of course, to the eternal credit of England's judicial system that not only was it able to hear a case of this kind but was also able to deliver a full substantive decision on it within a matter of weeks – the case was filed in January with the court's decision being handed down on 11 February 2013. But the speed of the process perversely creates just one more problem for plaintiffs in cases such as these. As counsel for the Claimant pointed out in oral argument, much of the data needed to formulate a coherent case regarding market definition, the dominance of the defendant, etc., is unlikely, in most cases, to be available to a mere distributor. Faced, therefore, with the need to build a case from the ground up, plaintiffs in such cases have the additional problem of having to do so in next to no time. That said, even if they were to be given considerably longer, constructing such a case, even to the lower standard needed for interim relief, takes the kind of skill and resource that would tax even the largest and most sophisticated of litigants.
While it is true the Claimant can still now pursue its case to a full trial as regards a claim for damages, failure to obtain injunctive relief (i.e. preservation of the status quo ante) means that there is, in effect, now only money at stake – the Lithuanian business that the Claimant had developed almost certainly will have migrated to another supplier.
Even though changes to the civil justice system are being contemplated, even the most ardent liberalizer is not saying that claims such as these should be made easy. That said, however, in the battles between the Davids and the Goliaths, tradition dictates that the Davids should, at the very least, be given stones for their slings. If they are not, then the job of regulating the market will fall exclusively to the regulators. And in times of economic austerity, that may well result in no regulation at all.