Peters & Peters leads £90m NHS claim over Gaviscon price-fixing
20 August 2013 | By Katy Dowell
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Macfarlanes, Peters & Peters and Taylor Wessing will do battle with Herbert Smith Freehills in a multi-million pound case that pitches the NHS against pharma giant Reckitt Benckiser Group in January.
Peters & Peters partner Jonathan Tickner launched the case for the Secretary of State for Health in early 2011 after the Office of Fair Trading fined Reckitt £10m for abusing its market position when supplying heartburn remedies to the NHS.
As well as the Secretary of State Tickner, who has instructed Monckton Chambers’ Paul Lasok QC, is collectively representing 10 Strategic Health Authorities and 144 Primary Care Trusts in England in the case.
The case has snowballed and attracted further claimants. In January Reckitt will be forced to defend seven sets of proceedings over nine weeks in front of Mr Justice Mann. The pharma giant has instructed Herbert Smith Freehills partner Stephen Wisking to defend the claim with Monckton Chambers’ Jon Turner QC acting as counsel.
Monckton Chambers has picked up instructions on both sides. Paul Harris QC is instructed for the Scottish and Northern Ireland NHS by RPC partner Catherine Percy and set-mate Ian Rogers is instructed by Geldards partner Paul Hopkins for the Welsh NHS.
In addition there are claims from three generic pharmaceutical companies, which have been joined to the case to allow it to be heard at the same time.
Macfarlanes partner Marc Israel has instructed 20 Essex Street’s Stephen Morris QC to lead a case for Pinewood Healthcare. Winston & Strawn partner Peter Crowther has instructed Brick Court’s Kelyn Bacon for Teva UK, while Taylor Wessing partner Nigel Stoate has brought in 3 New Square’s Tim Austen for Sandoz.
It is understood that the 100-plus claimants represented by Peters & Peters have the largest claim at £90m. It is alleged that Reckitt engaged in anti-competitive behaviour in relation to its heartburn medicine Gaviscon.
Reckitt is claimed to have delayed the drug regulator from publishing a recipe of ingredients to stop generic versions of Gaviscon Original from entering the market. The company is also alleged to have withdrawn the drug from the NHS, leaving patients with little choice but to use prescriptions for it on an alternative called Gaviscon Advance, which was still patent protected.
According to court documents Gaviscon enjoyed market dominance with a market share of 94 per cent in 2004. The claimants allege Reckitt’s conduct “constitutes unlawful abuse of a dominant [market] position” breaching competition laws.
The legal line-up:
For the claimant Department of Health for England
Peters & Peters partner Jonathan Tickner instructing Monckton Chambers’ Paul Lasok QC to lead David Drake of Serle Court and Philip Woolfe of Monckton
For the claimant Wales NHS
Geldards partner Paul Hopkins instructing Monckton’s Ian Rogers to lead Laura John
For the claimant Scottish and Northern Ireland NHS
RPC partner Catherine Percy instructed Monckton’s Paul Harris QC to lead Ronit Kreisberger of the same set
For the claimant Pinewood Healthcare
MacFarlanes partner Marc Israel instructed 20 Essex Street’s Stephen Morris QC to lead Monckton’s Ben Rayment
For the claimantTeva UK
Winston & Strawn partner Peter Crowther instructed Brick Court’s Kelyn Bacon
For the claimant Sandoz
Taylor Wessing partner Nigel Stoate instructed 3 New Square’s Tim Austen
For the defendants Reckitt Benckiser Group
Herbert Smith Freehills partner Stephen Wisking instructed Monckton’s Jon Turner QC to lead Josh Holmes of the same set