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The Israeli case of Palimport Ltd. v. Ciba Geigi Ltd, mentioned in my previous letter, is also discussed in "Valid, Voidable, Qualified and Non-existing Obligations: An Alternative Perspective on the Law of Restitution" Essays on the Law of Restitution (Burrows ed. 1991) 247, 265-266.

Daniel Friedmann

----- Original Message -----
From: Charles Mitchell
Sent: Wednesday, July 27, 2005 11:00 AM
Subject: [RDG]

In the absence of a cross-undertaking, a person against whom an interim injunction is granted has no claim to recover compensatory damages for loss suffered during the currency of the injunction if the injunction is discharged at trial. But can he claim instead for restitution of benefits accruing to the other party which the other would not have enjoyed, if the injunction had not been granted? No, says Lewison J in Smithkline Beecham plc v Apotex Europe Ltd [2005] EWHC 1655 (Ch) [74]-[79]. At [76] he reasons:

Suppose that during the currency of the injunction GSK had made profits of, say, £2 million in selling Seroxat to a multiple pharmacist. Part of the profit would have been due to the effect of the injunction in enabling GSK to keep up the price of its branded product. Suppose that, absent the injunction, Apotex would have sold paroxetine to the same pharmacist, but at reduced prices such that it would have earned profits of £1 million. Apotex does not claim £2 million (which is GSK's benefit). It only claims £1 million which is its own claimed lost profit. In other words, the claim is not measured by GSK's gain (which is the hallmark of a restitutionary claim); but by Apotex's own loss (which is the hallmark of a claim for damages). Apotex's own loss, moreover, is not the loss of some identifiable piece of property, but simply the loss of an opportunity to compete in the market. This is quite different to the power of an appeal court, on reversing a judgment of a lower court, to order the repayment of money paid under a judgment that has been set aside. The payment of such monies, or the return of property transferred under an order that is later set aside, could be enforced through a writ of restitution; but that is not the same as a restitutionary claim, as that concept has developed in the modern law.