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On what basis was the injunction granted without the usual undertaking?

Are these cases common?

John Swan

-----Original Message-----
From: Daniel Friedmann
Sent: May 26, 2006 12:30 PM
Subject: Re: [RDG] Smith Kline Beecham v Apotex

Thank you Charles for drawing attention to this decision which discusses the Israeli case of Palimport and my articles on the subject. Palimport held that if in a claim by B an injunction is granted against A and the injunction is later discharged or reversed A can claim restitution of benefits accruing to B (by increasing his sales to third parties) during the period that the injunction was in force. I supported this conclusion.

Lewison J. and the CA in Smith Kline Beecham v Apotex [2005] EWHC 1655 (Ch) decided that such a claim is unavailable. A different issue discussed in this case relates to third parties. My position was that Palimport is limited to a claim against the party that obtained the injunction and that no recovery can be had from third parties who benefited from the injunction (Essays in the Law of Restitution, Burrows ed. p. 266 note 75). This clearly follows from Smith Kline Beecham which goes further and denies restitution even against the party who obtained the injunction. The issue and the Israeli and Australian cases are also discussed in Mason & Carter, Restitution law in Australia (1995) 228-230.