Interflora Inc & Anor v Marks and Spencer Plc & Anor

I have to deal with an objection raised by Marks & Spencer to evidence sought to be adduced by Interflora under a Civil Evidence Act Notice.

By way of background, there was a case management conference in this matter, at which directions for the conduct of the proceedings were discussed, on 24 February 2012. One of the matters that was discussed during the course of that case management conference was the need for expert evidence, if any. In the result, the order that I made on that occasion was simply as follows: "each party has permission to apply for leave to adduce oral expert evidence."

As counsel for Marks and Spencer rightly points out, since that occasion Interflora have made no application for permission to adduce expert evidence. We are now at the first day of trial and the position remains that neither Interflora nor Marks and Spencer have permission to adduce any expert evidence. Consistently with that, neither party has put before the court any report from any expert witness.

Returning to the discussion at the case management conference on 24 February 2012, one of the matters that was discussed on that occasion was the need for expert evidence as to online paid search advertising of the kind that is in issue in these proceedings. The transcript records, starting at the foot of page 33 and continuing to page 34, the following exchanges between myself and counsel for Marks and Spencer:

Subsequently, in accordance with the directions made upon that occasion, the parties exchanged lists of documents. The list of documents served by Interflora on 16 August 2012 included a disclosure statement signed on behalf of Interflora which revealed, on page 2, that amongst the documents that were being disclosed were documents in the possession, custody or control of their solicitors, described as follows: "Documents obtained by Pinsent Masons as a result of a search for relevant articles/studies and research papers conducted to address the obiter comments of Arnold J at the hearing on 24 February 2012 (see page 34 of the transcript) regarding the evidence he would have found useful in these proceedings."

Amongst the documents contained in the list, I am informed by counsel for Interflora, were some of those which were subsequently made the subject of the Civil Evidence Act Notice and are now objected to by Marks and Spencer. He acknowledges, however, that other such documents were found at a later date and only disclosed together with the Civil Evidence Act Notice itself.

For reasons that I do not fully understand, notwithstanding the fact that these proceedings have been ongoing since 2008, witness statements were only exchanged relatively recently. On the date when witness statements were exchanged, which if I have understood correctly was 25 March 2013, Interflora also served a hearsay notice pursuant to section 2 of the Civil Evidence Act 1995 and CPR rule 33.2 giving notice that Interflora intended to rely upon the documents identified in the attached schedule.

The schedule lists some 18 documents. Some of the documents are of the precise kind to which I referred during the hearing on 24 February 2012, that is to say, Ofcom Media Literacy Audits and also other reports produced by Ofcom. In addition to those, there are other documents, one of which emanates from Google and another of which emanates from the well-known polling organisation YouGov. The remainder are academic articles of a broadly scientific nature published in a variety of media including academic journals such as Information Processing & Management and Decision Support Systems.

Objection is taken by Marks and Spencer to some, but not all, of the documents in the schedule. In particular, no objection is taken to the documents published by Ofcom. With regard to the academic articles, Marks and Spencer objects to the majority of the academic articles, but not all of them. A point which, to my eye, is quite striking is that the principal author of four of the academic articles is Bernard J. Jansen, an academic at the College of Information Sciences and Technology at Pennsylvania State University. Marks and Spencer objects to three of the articles written by Bernard Jansen and his academic collaborators and published in a variety of journals, but not a fourth one.

Against that background, I turn to consider the objections raised by Marks and Spencer. The primary objection raised by Marks and Spencer is that the statements contained in the documents set out in the schedule to the Civil Evidence Act Notice constitute expert evidence. Accordingly, such statements are admissible, so it is argued, in accordance with CPR Part 35 and not otherwise. In the alternative, Marks and Spencer contends that the court should exercise its case management powers under CPR rule 1.4(1) and (2)(h) and rule 32.1(2) to exclude the evidence, even if it is technically admissible.

It is, I think, important to be clear at the outset as to a potential objection to this evidence which is not advanced, namely, that it is hearsay evidence. In that sense, the Civil Evidence Act Notice has served its purpose.

It is important also to note that, although objection is taken to the lateness of Interflora's reliance upon this material, it is not contended that the Civil Evidence Act Notice itself was out of time. Rather, the point is made that, if an application had been made for permission to adduce this material by way of an expert's report, such an application would have had to have been made in due time before trial. Accordingly, due notice would have had to have been given to Marks and Spencer of the nature of the material that was being relied upon and for what purpose, which would have given Marks and Spencer a proper opportunity to deal with this material.

Central to the issue which I have to determine is whether this material is within the scope of CPR Part 35 or not. Counsel for Marks and Spencer submits that the material is squarely within the scope of Part 35. Counsel for Interflora submits that it is not within the scope of Part 35 at all. This is an issue as to which no authority other than the opinion of the editors of Phipson on Evidence has been cited to me. It is an issue upon which I would have preferred to have received fuller argument and to have had more leisure for consideration. Unfortunately, I find myself having to deal with it upon an extempore basis, having received limited argument, at half past four in the afternoon on the first day of trial.

The starting point for resolving the issue must be the fact that Part 35 contains no definition of expert evidence. What it instead has, in rule 35.2(1), is the following definition: "A reference to an 'expert' in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purposes of proceedings."

Part 35 goes on to contain a series of provisions regulating the admission and content of expert evidence. Thus, rule 35.4(1) states that: "No party may call an expert or put in evidence an expert's report without the court's permission." Similarly, rule 35.5(1) states that: "Expert evidence is to be given in a written report unless the court directs otherwise."

In my view, when one reads in the subsequent rules of Part 35 references to experts and to the evidence and reports of experts, those must be references to experts as defined in rule 35.2(1), that is to say, persons who have been instructed to give or prepare expert evidence for the purpose of proceedings. Thus, as I read Part 35, it controls the giving of evidence by experts as so defined. It does not control the admission of other types of evidence which may be described as expert evidence.

In my judgment, this interpretation is supported by the commentary in Phipson on Evidence (17th edition) at paragraph 33-25, where the learned editors say this: "… The position now is that the court has power to restrict the calling of an expert or the tendering of an expert's report. This rule, however, applies only to reports falling within the definition set out above. There are several types of report which do not do so, even though such a report may be highly relevant and a party may well wish to rely on it. Such reports may contain expert evidence admissible at common law and which can now be tendered in evidence notwithstanding that they are hearsay. It commonly happens that reports are prepared by third parties and either published or made known to particular individuals. Thus there may be MAIB reports into shipping casualties, or reports by the Factories Inspectorate into accidents which occur in the workplace. It is easy to multiply the numbers of official reports which fall into this category. A party may well wish to rely on the contents of such an official report, even though he has not had any part in its production. Documents of this class are not the reports of 'experts' within CPR Part 35. That does not mean that they are not statements of opinion on relevant matters by appropriately qualified experts in the general sense. They may therefore be tendered in evidence without the permission of the Court, because they are admissible at common law, they are not excluded by the hearsay rule because of the 1995 Act and CPR Part 35 does not apply to them. In theory, it would be possible for other parties to invoke section 3 of the 1995 Act and call the expert for cross-examination; but it is easy to see the court jibbing at the prospect of compelling some independent public servant to come to the court to speak to a report that he has not reconsidered since that day, perhaps months or even years before, when he released it for publication. However the cross-examination question is resolved, it appears that this class of report escapes CPR Part 35 altogether."

It will be observed that the learned editors state no less than three times during the course of that passage that documents of that class are not within Part 35. What they say in that passage is clearly directly applicable to documents such as the Ofcom reports sought to be relied upon by Interflora in the present case. In my judgment, however, it is no less applicable to articles of a scientific nature published in the academic literature. Indeed, counsel for Marks and Spencer did not submit to the contrary.

Rather, counsel for Marks and Spencer submitted that the editors of Phipson were quite simply wrong in their interpretation of Part 35. He submitted that, once it was determined that a statement constituted expert evidence in a general sense (that is to say, evidence requiring specialist expertise in the field in question), then there was only one way in which to adduce such a statement before the court, namely in accordance with Part 35.

I do not accept that submission, for two main reasons. The first is the one that I have already given, namely, that I agree with the editors of Phipson as to the construction of Part 35. The second reason is that it seems to me that the submission would have startling consequences. Take the common situation where an expert witness A produces an expert's report for the purposes of litigation which is admittedly and avowedly within Part 35 and permission is given to adduce that expert report. Suppose too that expert A exhibits to his report and relies upon articles published in the scientific literature by B, C, D, E and F, but no expert report is produced from B, C, D, E and F. The consequence of counsel for Marks and Spencer's argument, as it seems to me, would be that the expert report of A would be admissible because it was properly adduced before the court pursuant to the machinery in Part 35, but the material exhibited by A (namely the scientific papers by the other experts) would not be admissible. In my view, that cannot be right.

Counsel for Marks and Spencer attempted to meet that point by arguing that it was perfectly proper for an expert to produce a report in which he relied upon scientific literature published by others. I do not understand how that can be correct, however, if counsel for Marks and Spencer is right in saying that any statement by an expert is caught by Part 35 and can only be adduced before the court if its provisions are complied with.

For those reasons, I have come to the conclusion that Marks and Spencer's objection to the material scheduled to the Civil Evidence Act Notice is not well-founded in so far as it is based upon the proposition that such material would only have been admissible in the form of an expert's report, or possibly an exhibit to an expert's report, properly tendered in accordance with Part 35.

I turn, therefore, to consider the second objection, which, to my mind, is a rather different objection and one with somewhat more force. This objection is one not of technicality, but of fairness. The argument, in essence, is that by service of this Civil Evidence Act Notice so shortly before trial, Interflora are seeking to put before the court a selection of the scientific literature which is designed to advance Interflora's case in circumstances where Marks and Spencer has not had adequate notice of the material and, therefore, is not properly in a position to deal with it.

In order to address that objection, it is necessary to consider a little more fully the nature of the evidence and the purpose for which it is being tendered. One of the key questions in the present case is whether, as the Court of Justice of the European Union put it in case C-323/09 at [66] "… the advertising displayed on the basis of that keyword does not enable reasonably well informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods or services concerned by the advertisement originate from the proprietor of the trade mark or an undertaking economically linked to that proprietor or, on the contrary, originate from a third party."

In trying to answer that question, the court needs to put itself in the position of "reasonably well informed and reasonably observant internet users". It is therefore relevant for the court to receive evidence which sheds light on the attributes of reasonably well informed and reasonably observant internet users. As I put it at the hearing on 24 February 2012, what do such persons know about the internet? How do they use the internet? What are their perceptions when using the internet? Specifically, as I had in mind on that occasion and I think those in court understood, what do such users understand about search engines and paid advertising that is displayed as part of search engine results pages?

The purpose for which Interflora seek to rely upon the material in question is to advance its argument that, to put it in a nutshell, reasonably well informed and reasonably observant internet users are not all sophisticated users of search engines who are alive to precisely what Google, in particular, does with regard to paid advertising; but, on the contrary, many of them are relatively naive about what appears on a search engine results page. The materials listed in the schedule to the Civil Evidence Act Notice are a variety of reports and articles emanating, as I have said, from Ofcom and others and from academics who have considered questions of internet literacy generally and specifically the extent to which internet users understand the nature of paid search advertising.

As I believe I made clear at the hearing on 24 February 2012, my purpose in suggesting that the parties should consider material such as Ofcom's media literacy reports was to make use of learning that was already available in the public domain and which could, therefore, be obtained simply for the cost of copying it, without requiring the parties to go to the expense of preparing experts' reports.

Counsel for Interflora submits that that is precisely what Interflora have done by the Civil Evidence Act Notice. Counsel for Marks and Spencer protested that nothing that had occurred between 24 February 2012 and 25 March 2013 gave Marks and Spencer any kind of notice as to what materials were intended to be relied upon by Interflora and for what precise purpose. He did not shrink from describing Interflora's Civil Evidence Act Notice as an ambush.

I am bound to say that I have sympathy with Marks and Spencer's complaint that it has been given notice of this material at a very late stage of these proceedings. As I observed at the beginning of this judgment, however, Marks and Spencer does not contend that the Civil Evidence Act Notice was served out of time. The lateness of service of the Civil Evidence Act Notice, as I understand it, is due to the lateness with which the parties ultimately agreed to exchange expert evidence. That being so, the mere fact that the material comes into the case at a rather late stage does not seem to me, in and of itself, to be a sufficient reason to regard Interflora's reliance upon it as unfair or prejudicial to Marks and Spencer. That is particularly so when it is borne in mind that I made the original suggestion that this kind of material be considered as long ago as 24 February 2012 and that Interflora made it clear that they were going down this line in their list of documents served on 16 August 2012.

The point which most concerns me is whether it is fair for Interflora to be permitted to rely upon a selection of the academic literature in circumstances where I do not know what a wider search of the academic literature might throw up and whether or not there is academic literature, or indeed other official reports like the Ofcom reports, which could be relied upon by Marks and Spencer to rebut the proposition advanced by Interflora.

At the end of the day, it seems to me that that is not a matter which amounts to sufficient unfairness that I should exclude this evidence. Marks and Spencer has been on notice that this court would be interested in receiving independent and impartial evidence available from public sources simply at the cost of copying it for well over a year. If Marks and Spencer has not undertaken the kind of search of official reports and the academic literature that Interflora have undertaken, then it seems to me it has only itself to blame.

Finally, I think I should deal with one further point made by counsel for Marks and Spencer. He submitted that a further consideration to be taken into account in these circumstances was that the court should be astute to an attempt by parties like Interflora to turn the court itself into its own expert. I think that is a very real concern. I confess to discomfort at the proposition that scientific literature can be put before courts without the benefit of an expert's report to put the literature into context and without the opportunity for an expert to be cross-examined upon the contents of such literature.

Upon analysis, however, I think my discomfort relates to the ability of the court to understand and evaluate the material in question. Whatever might be the position in other cases, I do not consider that that is a difficulty which applies in the circumstances of the present case. I have looked at much of the material that is relied upon by Interflora during the course of counsel for Interflora's opening submissions in this case, when he took me to many of the documents in question. I have seen nothing which leads me to believe that I have any difficulty in understanding and evaluating the material in question. Accordingly, whatever might be the position in other cases, this factor does not cause me to exclude the evidence in this case.

Finally, I would return to another matter that I referred to at the outset, which is the selectivity of Marks and Spencer's objection. When I asked counsel for Marks and Spencer about that, he replied that all of the material was objectionable, but that he was focusing his objection upon the documents that were of most concern to Marks and Spencer. While that may be a permissible approach, I am bound to say that I find it of concern that it should be suggested that, as I pointed out earlier, three articles by a particular academic published in the academic literature should be excluded and yet one by the same author should be placed before the court. Accordingly, even if I took a different view as to some of the other materials, I would in any event not exclude the other three articles by Bernard Jansen, given that no objection is taken to one of his articles.

For those reasons, I decline to exclude any of this evidence.