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|The White Book:|
home to para 5.1
of Practice Direction to CPR Part 25
ask the CJEU, the answers to which would enable him to decide the dispute before him, Birss J then had to work out what should happen during the year or two in which the CJEU answered those posers. Accordingly he moved on to the form of the cross-undertakings of the respective parties.
Actavis wanted to be sure that the benefit of Boehringer's undertaking to compensate for any loss of sales if the SPC turned out to be invalid after all would apply to (i) any company within the Actavis group and/or (ii) any customer or potential customer of a company within the Actavis group. Henry Carr QC (11 South Square), for Boehringer, argued that this was too wide: the court surely needed to be told who precisely are people to whom the order extended. In any event, Actavis must know what other Actavis companies are involved especially since Actavis's solicitors (Bird & Bird) informed Boehringer's solicitors (Allen & Overy) that it would be the second claimant -- Actavis (UK) Limited -- who would be marketing the product in the UK. Henry Carr also argued that the term "customers or potential customers" was unclear and would lead to further disputes.
"A party seeking an interim injunction or accepting undertakings in lieu of an interim injunction, is entitled to be aware of an indeterminate and open-ended cross-undertaking in favour of persons unknown."
|"Cross" always came more|
easily than "undertakings"
"I should emphasise that it is always possible for a person who is not covered by a cross-undertaking in a case such as this to apply to the court and seek permission to be joined in to the proceedings, or at least to be joined in such a way as to take the benefit of the cross-undertaking, if they believe they are suffering loss caused by the interim injunction, but that is a matter that can be dealt with if and when it arises and at that point the court and the person giving the cross-undertaking will be in a position to see whether it is a right or fair thing to do and, from the point of view of the person giving the cross-undertaking, whether they are prepared to continue with the interim injunction on the new terms that would be required."