Peters & Peters

CAT rules in favour of NHS in significant competition claim against pharmaceuticals

Peters & Peters was recently instructed to act for the NHS in long-running litigation against the Danish pharmaceutical company Lundbeck and several others, and to seek to resist arguments by the pharmaceutical companies that the NHS’ claim had been brought out of time and should not be allowed to proceed.

The claims arise from the European Commission’s 2013 decision that Lundbeck and the other defendants infringed European competition law by entering into ‘pay for delay’ agreements under which generic producers and suppliers of Lundbeck’s blockbuster antidepressant, citalopram, agreed not to enter the market with generic products, even after Lundbeck’s original patent had expired. This resulted in the NHS facing substantially higher prescription costs for Lundbeck’s branded product and caused significant losses to the NHS.

The CAT ordered a preliminary issue in relation to limitation which was heard in April. The pharmaceutical companies argued that as the proceedings had originally been filed in the High Court in 2019, and later transferred to the CAT, the usual six-year limitation period in High Court proceedings should apply and had expired. The claimants argued that their claims should be allowed to proceed because a valid claim form was filed with the CAT within two years of the final judgment in the European proceedings, in accordance with the specialist tribunal’s rules.

The CAT has ruled on Friday that the correct limitation period is the two-year period in the CAT rules and that the claim had therefore been brought in time. The CAT also rejected the pharmaceutical companies’ arguments that the NHS was estopped from arguing that the CAT rules applied by the terms of the order transferring the proceedings from the High Court to the CAT.

The NHS’ claims will now be allowed to proceed.

The team at Peters & Peters comprises Jonathan Tickner, Emma Ruane, Edward Irwin and Holly Buick. George Peretz KC of Monckton Chambers and David Drake of Serle Court Chambers were instructed.