The High Court has allowed Glaxo Group Limited and Glaxo Smithkline (Ireland) Limited, trading as Allen & Hanburys, to add six defendants to their passing-off proceedings against Rowex Limited and to deliver an amended statement of claim.
In a judgment delivered on 19 November 2018, Mr Justice Max Barrett said the plaintiffs had shown a stateable case that Rowex and the proposed additional defendants had acted jointly in passing off. The court was considering whether they could be joined to the existing case, not deciding whether the alleged tort had been committed.
The plaintiffs said information from parallel proceedings in England indicated that the existing and proposed defendants had committed passing off. The judge referred to evidence including affidavits sworn by the plaintiffs’ solicitor Carol Plunkett in November 2017 and October 2018. He said the claims were not vexatious and that there was no abuse of process.
The court considered that the plaintiffs alleged fundamentally the same issues against all defendants and intended to pursue a joint-liability case. Refusing joinder could lead to separate proceedings and risk conflicting judgments, the judge said, contrary to the efficient administration of justice.
Rowex had argued that it was prejudiced by delay and by having already been involved in a discovery application. The judge said the discovery sought was one the plaintiffs were entitled to pursue. The plaintiffs had confirmed they would seek no further discovery from Rowex beyond what the court had ruled in May 2016, apart from a limited tightening of that order. The judgment said there was no evidence of prejudice such as delay in bringing the case to trial, and that costs were the only prejudice alleged.
The proposed defendants had also provided evidence about why they should not be joined or should be joined only subject to limits connected with discovery. The judge said a proposed defendant could not be heard on an application to join them. Any arguments about discovery after joinder should be raised in the relevant discovery application.
The court granted joinder of the six proposed defendants and leave to deliver the amended statement of claim. The judgment does not identify the six defendants by name in the text provided, and it makes no finding on the underlying passing-off allegations.