AAH & others v Pfizer & Unichem [2007] EWHC 565 (Ch)

High Court judgment (about 14 pages) by David Richards J rejecting an application by independent pharmaceutical wholesalers for an injunction to prevent Pfizer and Unichem from implementing an exclusive agency distribution system for Pfizer drugs in the UK. The decision was made at the end of hearing on Friday 2 March 2007, with the new arrangements due to take effect from the following Monday.

The new system prevents full-line wholesalers from distributing Pfizer's drugs: instead pharmacists must order these drugs from Unichem (Alliance Boots' bulk distribution business) acting as Pfizer's agent. Unichem continues to operate its own full-line wholesaling business in addition to distributing Pfizer's drugs under the new system.

The claimants had argued that this arrangement was prohibited by the Competition Act 1998 and that implementing it would cause them irreparable damage, in particular by distorting competition in favour of Unichem.

The judge reports the view of the OFT, which had been considering a complaint for some months, that there was "insufficient evidence of irreparable harm". He criticises the claimants for apparent delays in submitting evidence to the OFT that smaller pharmacists and dispensing doctors would switch to Unichem. (An OFT letter is referred to by the judge but not included in the judgment.)

Besides this, the main basis for the decision for refusing a last-minute injunction is that it would cause disruption and reputational damage which are "not readily capable of compensation", and that there seemed to be no excuse for the approach and timing adopted by the claimants:

77 ... The fact that the claimants chose to pursue their complaints with the OFT and to persist in doing so until the very last moment does not in my judgment provide a good ground for not bringing the matter before the court at a much earlier stage.

For further information or advice please contact Franck Latrémolière.

Filed under Healthcare, OFT, Pharmaceuticals, UK courts.

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