Cipla Vet (Pty) Ltd v Merial and Others

The respondents (Merial entities) instituted a patent infringement action against Cipla Vet (Pty) Ltd in respect of South African Patent No 96/8057. Cipla pleaded invalidity of the patent on several grounds, with obviousness forming the bulk of its defence. Extensive preparation, including consultations with expert witnesses and engagement of two counsel, was undertaken by the respondents in anticipation of trial. Shortly before trial, Cipla amended its plea to abandon the obviousness defence. Murphy J, sitting as the Court of the Commissioner of Patents, dismissed the infringement action and made a costs order including two counsel and qualifying expert fees, and further ordered Cipla to pay wasted costs occasioned by the amendment. A dispute arose as to whether the wasted costs order included the costs of two counsel and expert qualifying fees, which were not expressly mentioned in that part of the order. The respondents sought clarification or variation of the order. After conflicting decisions in the High Court, the full court clarified that the wasted costs included those items. Cipla appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, and the order of the full court clarifying that the wasted costs included the costs of two counsel and the qualifying fees of expert witnesses was confirmed.

The case affirms South African principles on the interpretation and clarification of court orders, particularly costs orders, under rule 42 and the common law. It clarifies that wasted costs may include counsel and expert fees incurred due to late amendments, even if not expressly itemised, where the context and intention of the court support such inclusion. The judgment is significant for litigation practice, especially in complex patent matters involving expert evidence and amendments on the eve of trial.