Playing For Time, Or Paying For Time? – The Danger Of Delay In Litigation

On June 18, 1997 Eli Lilly sued Apotex for infringement of several of its patents on the antibiotic cefaclor. It was to be the beginning of a very long fight. There is a school of thought among litigators that delay tends to favour the defendant. In a corporate setting management may change over time, and a new manager may be more willing to settle a case on favourable terms than the one who authorized the proceeding since the new manager is less likely to have a personal interest in the case.

Mr. Justice Zinn's decision in Eli Lilly and Company v Apotex Inc. 2015 FC 1254 may cause defendants to reconsider whether delay is still a winning strategy. At common law interest could be awarded as a component of damages in a limited number of cases. This was considered unfair, and legislation was passed beginning in the 1970s in several provinces and at the Federal level giving the courts the power to award prejudgment interest calculated as simple interest at a statutory