The DC in part refused the Rule 24 application on the basis of prejudice to the defendants as to find for Epadi that the decision should be vacated would nullify the work of many years ...etc The DC in finding such misunderstands the concept of prejudice. Agreeing that Epadi had standing would not vacate the courts decision - it could only do so if the court found the Rule 60 case to be made out by Epadi . If the court found it right to allow the Rule 60 motion it is not a matter of prejudice to the defendants - they rightly should not be allowed any economic benefit from the practice of a fraud upon the court . Conversely if the court ruled that the Rule 60 was not made out there would be no adverse economic effect upon the defendants as the patents would continue to be considered invalid as per the courts original decision. There is no prejudice to either party Amarin or Hickma by deciding that Epadi has standing under Rule 24 -Crucially -The defendants are not prejudiced as to the presentation evidentially as to their case in relation to the Rule 60 motion Alm
As to a consideration of Rule 24 and Rule 60 motions together the DC should rightly consider that any baseless and frivolous applications under Rule 60 could create prejudice to a defendant as to costs in contesting such litigation . It would be right for the DC to examine the Rule 60 application and the evidence relied upon to support such a motion and also the response of the defendant as to the Rule 60 application as to factual challenge. In this case the defendants in the DC most notably failed to challenge any element of detail as to fact in the applicants case.The DC however undertook no initial assessment as to the applicants Rule 60 case to determine whether it was baseless or frivolous or indeed whether on the face of the case and its supporting evidence it might have merit. Instead the DC simply concluded that to allow the Rule 24 application would in effect economically prejudice the defendants irrespective of the possible or actual merits of the applicants case
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