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The Claimant had entered into a contract to distribute in the USA a cold sore treatment device of which the Defendants held the intellectual property.
The Defendants terminated that contract on the basis that the Claimant had not paid ‘consideration’ due to the Defendants once they had provided the Claimant with the experimental data, etc., to enable it to apply for FDA approval for the device. The Claimant alleged that the termination had been wrongful and sought damages by way of lost profits of over $50 million.
After a two-week trial in the High Court, Mr Justice Stuart-Smith held that the contract had been varied by the conduct of the parties such that the ‘consideration’ was no longer liable to be paid to the Defendants at the material time and that the contract had therefore been wrongfully terminated. After hearing expert evidence from US-based industry experts and forensic accountants, the Court determined damages in the sum of $1.9 million.
The Defendants were represented by Oliver Segal QC and Stuart Brittenden.
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