1. The decision is clearly right. 2. It contains what is, in my view, a very welcome reassertion of the approach in Tinsley v Milligan in reaction to some backsliding by the Court of Appeal that had thrown the law into unprincipled uncertainty. 3. There is a bizarre failure to consider the fact that what was in issue was the infringement of a *Canadian* patent. So, the claimant brings a claim in London seeking to restrain the selling of a product here as a violation of an English patent. An interlocutory injunction was granted with a cross undertaking to pay for losses caused. When the claim came to trial, it was held that the patent was invalid, and the claim is for the lost sales in the interim. Meanwhile, in separate proceedings in Canada, it was subsequently held (after the conclusion of all the English proceedings) that there had been an infringement of a Canadian patent by the defendants. Does a claim in England based upon the undertaking to compensate for loss fail for illegality because of the infringement of the Canadian patent? Of course not. Do we in England give effect to the patent laws in every country in the world? No. The first question is one of private international law. If, say, the law of Ruritania is that selling blue widgets in England is unlawful, do we recognise that? Not necessarily, no. That it is illegal according to Ruritanian law doesn't entail that it is contrary to the *law* in England (*law* meaning all of English law, including its choice of applicable law rules, not just its domestic law). Do we give international effect to Canadian patent laws so as to render sales in England unlawful (although violating no English patent)? Of course not, any more than a Canadian court would or should give effect to an English patent when it comes to the legality of sales in Ottawa. What connected these facts to Canada? As far as I can see, the only connection was that one of the parties was Canadian. Nice for them, but not enough to apply Canadian law to the issue before an English court. 4. I am not entirely sure that something like the illegality principle never applies to private law wrongs. So, if a defendant commits two breaches of contract, I don't think he can resist a claim for damages based upon one of them by arguing "but I also committed another breach, you could have terminated for that one, so your damages are lower" Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459 (Devlin J). Or, more controversially, if I repeatedly trespass on your land in the face of your protests, if you subsequently failed to remove a danger on the land could I argue "you could foresee my presence because you knew I was in the habit of trespassing, and so should have taken steps to protect me." 5. On a wholly unrelated point, those who have not seen this letter from the Chief Justice of the HCofA complaining about the unsolicited submission of articles by academics may find this interesting. http://www.scribd.com/doc/244558945/French-CJ-letter-to-law-deans Rob ________________________________________ From: Gerard Sadlier [gerard.sadlier@gmail.com] Sent: 29 October 2014 12:13 To: obligations@uwo.ca Cc: ENRICHMENT@LISTS.MCGILL.CA Subject: Terpitude in the UK Supreme Court The UK Supreme Court today gave judgment in Les Laboratoires Servier & Anor v Apotex Inc & Ors [2014] UKSC 55. http://www.bailii.org/uk/cases/UKSC/2014/55.html On a first skim reading of the decision, I am sure the result is right - less so whether the distinction apparently drawn by the majority between breaches of the public law of a state, which give rise to the illegality defence and private rights (patent rights in this case) which do not is entirely convincing. I think the patent rights at issue in the case themselves high-light that the sharp distinction between public law and private rights which the Court appears to envisage may not always be an easy one to draw. Kind regards Ger
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