Dear Robert,

Thank you for your comments.

What you say at point (i) is true - but as the Court noted at point 2
of its judgment: "... the manufacture and marketing of generic
pharmaceutical products. The parties have agreed that for the purpose
of resolving the issues on this appeal,
both groups can be treated as one entity without regard to the
distinct corporate personality of the companies comprising them." In
light of that concession (made by the parties for their own reasons) I
do not think it is open to us now to take the point that only one
Defendant manufactured the product and that Defendant was not the
Defendant which sold the product in England.

Approaching the matter as you do in point (ii) of your email, on the
basis that reliance on the illegality must be shown, I must say that
Arnould J's conclusion that Apotex could not make good its claim
without affirming that it would have manufactured and sold the product
unlawfully in Canada is compelling to me. Again, we cannot properly go
behind the concession that the corporate groups are to be treated as
single entities.

Even if I am wrong about that and we should look at the matter as
between entities within the corporate group, the UK company would
have had to rely on the illegal manufacture of the product in Canada
to prove its loss. After all, the UK company would have had to prove
that it would have sourced the goods but for the English injunction
and consequent undertaking as to damages; from where it would have
sourced the goods; and the profit which it would have made but for the
injunction that prevented it selling in England the product which it
had sourced. To do this, the UK company would have had to lead
evidence of the manufacture of the goods in Canada. It seems to me
that this is sufficient reliance to trigger , the illegality defense
if the conduct in question be such as to raise the illegality defense
in the first place.

Kind regards

Ger
On 10/29/14, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
> "The illegality in this case was the
> manufacture of the patented items in Canada, not their sale in
> England. "
>
> That doesn't work because:
>
> (i) Only one of the four defendants did that (and not the one doing the
> selling in England).
>
> and
>
> (ii) The claim was for losses caused by the fact that they had been
> restrained from selling in England, not for losses caused by (not?)
> manufacturing in Canada. So, even characterising the wrongfulness as the
> manufacturing in Canada, the claimants were never relying on doing that for
> the purposes of their claim for loss caused by the award of the English
> injunction, so that the illegality principle could never apply.
> R
>

====

This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.