INNOVATE PHARMACEUTICALS LIMITED v UNIVERSITY OF PORTSMOUTH HIGHER EDUCATION CORPORATION
2022
TECHNOLOGY AND CONSTRUCTION COURT
UK
CORAM
- VERONIQUE BUEHRLEN Q.C.
Areas of Law
- Civil Procedure
- Contract Law
- Tort Law
2022
TECHNOLOGY AND CONSTRUCTION COURT
UK
CORAM
AI Generated Summary
VERONIQUE BUEHRLEN Q.C. decided the University of Portsmouths application for security for costs against a small pharmaceutical company that developed IP1876B, a liquid aspirin formulation. Under a 2016 contract, the Universitys researcher Dr Richard Hill led a programme assessing the drug, later described in an August 2019 Cancer Letters article subsequently corrected and retracted in March 2021. The Claimant alleges negligent or dishonest misstatements in breach of clause 11.1 and 18.1 and a tort duty of care, supported by the Universitys disciplinary findings of research misconduct and the Retraction Notice. The University denies breach and relies on contractual limits capping liability at a31 million. The University sought security under CPR 25.13, while the Claimant produced ATE insurance from AmTrust Europe. The judge held the ATE cover inadequate but, considering strong merits, public funding irrelevance, the a31.3m burden, and a high likelihood of at least a31m recovery, refused security and invited costs submissions.
This is an application dated 18 November 2021 brought by the Defendant for security for costs pursuant to CPR rule 25.13.
The Parties
The Claimant is a pharmaceutical company whose work includes the development of drugs for the treatment of cancer. The Claimant is a small company owned by 3 individuals, a scientist, a medical doctor and a lawyer. The Claimant has developed a drug known as IP1876B (“the Drug”), which is a form of liquid aspirin, which it hoped and still hopes to licence to pharmaceutical companies. The Defendant is a university, an institution that carries out medical research and a centre of excellence for research into brain cancer.
The Factual Background to the Dispute
The dispute arises out of a written agreement dated 7 July 2016 by which the Claimant hired the Defendant to conduct a Research Programme into the properties of the Drug in the context of the treatment of brain tumours (“the Contract”). The Research Programme was to be undertaken under the direction of Dr Richard Hill, a researcher then employed by the Defendant. The purpose of the Contract, according to the Claimant, was to put itself in a position in which it could demonstrate (such as to a pharmaceutical company) the properties and potential uses of the Drug by reference to a credible and reliable set of research results.
The Claimant’s case is that Dr Hill made a number of false representations in respect of the results of the Research Programme, firstly orally and in text messages and emails sent to the Defendant in August 2018 and secondly in a scientific paper about the methods and results of the Research Programme published in a scientific journal known as Cancer Letters on 28 August 2019 (“the Paper”). The Paper was entitled:
“ IP1867B” suppresses the insulin-like growth factor 1 receptor (IGF1R) ablating epidermal growth factor receptor inhibitor resistance in adult high grade gliomas ”
In short, the representations were to the effect that the data obtained from the Research Programme showed that the Drug suppressed resistance to Epidermal Growth Factor Receptor (“EGFR”) inhibitors. The significance of this is that a drug that reduced a tumour cell’s ability to develop resistance to EGFR inhibitors would potentially enable much more effective cancer treatment. An associated press release reflects the claim in layman’s terms: “Shrinking brain tumours with liquid aspirin”.
Issues were raised in relation to the Paper following publication and a Corrigendum w