Barclay Pharmaceuticals Ltd v OPD Laboratories Ltd & Ors
2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
- THE HONOURABLE MR JUSTICE DINGEMANS
Areas of Law
- Contract Law
2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
AI Generated Summary
Trident Pharmaceuticals sued OPD Laboratories for breach of warranty and indemnity after OPD's repackaging licenses were suspended. The court found a contract between the parties, and OPD Laboratories liable for some improper repackaging. Conditional leave to defend was granted with a requirement for OPD Laboratories to pay £360,000 into court. The case establishes principles on striking out a defence and summary judgment.
Judgment
Mr Justice Dingemans :
This is the hearing of applications to strike out a defence and for summary judgment made by Barclay Pharmaceuticals Limited trading as Trident Pharmaceuticals (“Trident Pharmaceuticals”) against OPD Laboratories Limited (“OPD Laboratories”).
Background
It is common ground (as appears from paragraphs 1 to 4 of the Particulars of Claim and paragraph 3 of the Defence) that Trident Pharmaceuticals imports pharmaceutical products from abroad, which need to be repackaged to comply with the provisions of the Medicines Act 1968 and the Medicines for Humans Use (Manufacturing, Wholesale Dealing and Miscellaneous Amendments) Regulations 2005. The repackaging must be carried out by an entity licensed by the Medicines and Healthcare Products Regulatory Agency (“MHRA”). The relevant entity requires a Manufacturer’s/Importer’s licence (“MIA”) and a Product Licence for Parallel Imports (“PLPI”).
OPD Laboratories did have a MIA and PLPI and it carried out repackaging services. It is common ground that OPD Laboratories repackaged some pharmaceutical products supplied by Trident Pharmaceuticals.
It appears that in March 2009 the PLPI for OPD Laboratories for the drug Xatral XL had been withdrawn. This meant that dealings by OPD Laboratories since March 2009 with Xatral XL had been unlicensed. It is also common ground that on 1 March 2011 the MHRA suspended the MIA for OPD Laboratories. It appears that this followed an inspection in January 2011 in which it was discovered that OPD Laboratories had not repackaged products in accordance with its licences. On 10 March 2011 a recall notice for the products packaged by OPD Laboratories was issued. It is also common ground that following the recall drugs were returned. Some of the returned drugs were repackaged where it was lawful to do so. Some drugs were destroyed.
Trident Pharmaceuticals claims that total losses are said to amount to £480,557.06 (having claimed £454,434.84 in the Particulars of Claim) and seek judgment in that sum either as damages for breach of warranty or as a debt pursuant to an indemnity clause. Invoices rendered by OPD Laboratories for repackaging services which have not yet been paid total £60,915.87.
I am very grateful to both Mr Morrison on behalf of the Claimant and Mr Buttimore on behalf of the Defendant for their Skeleton Arguments and submissions. It now appears that the real issues between the parties are:
whether the relevant drugs were packaged by OPD Lab