David Lewis-Hall (a pupil at Crown Office Row Brighton) comments on the case of Interflora Inc and another v Marks and Spencer plc and another.
In the recent case of Interflora Inc and another v Marks and Spencer plc and another  EWHC 936 (Ch), Arnold J held that CPR Part 35 controlled only expert evidence given by experts as defined in that Part, and did not apply to the admission of other forms of evidence which may be described as expert evidence.
This battle was the latest in a long war of attrition between Interflora (“IF”) and Marks and Spencer (“M&S”). The background to the dispute is set out in the judgment of Lewison LJ in an earlier battle at  EWCA Civ 1501. In short, the matter relates to an alleged trade mark infringement by M&S by using IF’s trade mark as a keyword in the Google AdWords referencing service so that its own advertisement would appear when users searched for the mark.
The question of the admissibility of the expert evidence IF sought to rely on was raised on the first day of the trial. IF sought to rely on evidence regarding the UK population’s knowledge and use of the internet including Ofcom’s media literacy audits and articles from academic journals. No application had been made for permission to adduce expert evidence.
M&S objected to the admission of some of the academic journals on the basis, inter alia, that the statements in the documents amounted to expert evidence and therefore were admissible in accordance with CPR Part 35 but not otherwise. Arnold J summarised their submission as being 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”.
The court had to determine whether to allow IF to adduce the evidence as hearsay under the Civil Evidence Act 1995 s.2 and CPR Part 33.2 or whether it was inadmissible as it was not produced in accordance with CPR Part 35. In the words of Arnold J, the central issue was whether the material was within the scope of CPR Part 35.
Arnold J held that the material relied upon did not fall within the scope of CPR Part 35 and therefore was admissible. In reaching this conclusion his starting point was to note that although there is no definition of expert evidence in CPR Part 35, the term ‘expert’ is defined.
CPR Part 35.2(1) provides that:
“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.”
On this basis Arnold J went on to hold:
“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 the course of argument the court was referred to the commentary in Phipson on Evidence (17th Ed) at 33-25 which supports this interpretation.
Arnold J gave two reasons for reaching the conclusion that the evidence was outside the scope of CPR Part 35. The first was that his interpretation was in agreement with the commentary in Phipson on Evidence. The second was that if the position put forward by M&S was found to be correct it would have startling consequences. In particular, where an expert provides a properly adduced report under CPR Part 35 exhibiting journal articles by other experts, these would be inadmissible. Arnold J was of the view that this cannot be right.
In this case the court was referred to no authority other than the opinion of the editors of Phipson on Evidence. It would seem then that this case is the leading authority on whether evidence amounts to expert evidence for the purposes of CPR Part 35 or is merely evidence of an expert that can be adduced outside of the provisions of that Part.
The important factor highlighted by Arnold J was that the expert had not been instructed to give or prepare evidence for the purpose of proceedings. This is likely to be an important distinction to note both practically and for costs purposes. Firstly, it highlights that where a court has refused or only granted limited permission to rely on expert evidence, there is an alternative option of adducing existing expert opinion from academic literature on the point in issue. This may now be of particular importance given the recent changes to CPR Part 35.4 requiring parties to estimate the cost of expert evidence and strictly limit the issues they are asked to report on. Secondly, it provides a potentially more cost-effective way of adducing expert evidence by avoiding the costs associated with commissioning an expert report and ensuring compliance with CPR Part 35. In the post-Jackson landscape of increased judicial scrutiny of costs, any method of keeping costs down is to be welcomed as they are more likely to be viewed as proportionate and therefore recoverable.