"Loud and Clear" Lewison LJ finds for M&S in latest Interflora evidence battle

The AmeriKitten losing
interest....Part II

The AmeriKat was joking last week with one of her barristers that as soon as cases start getting "Roman numeralled" she loses interest. Now, without further ado, let her introduce you to Interflora II - a surprisingly interesting Roman numeral case. Interflora II, as Lord Justice Lewison calls it in the opening paragraphs of his judgment, is "the latest battle in the long war of attrition between Interflora and M&S".

The first Interflora saw M&S successfully attacking the grant of permission to Interflora to adduce evidence from witnesses selected from a "witness selection progamme".  In Interflora I, the Court of Appeal declared that evidence should be controlled at an interim stage to ensure that it would be of "real utility" and "whether the likely utility of the evidence justifies the costs involved". The Court was, in Mr Hobbs QC's opinion, the robust gatekeepers of evidence in that respect.

In a similarly robust judgment from Lord Justice Lewison, the Court again overturned Mr Justice Arnold's grant of permission to Interflora to adduce further evidence. He declared:

"With the benefit of hindsight, perhaps I did not make my message clear enough in Interflora 1. Let me say it again, but more loudly. A judge should not let in evidence of this kind unless the party seeking to call that evidence satisfies him (a) that it is likely to be of REAL value; and (b) that the likely value of the evidence justifies the cost. " (no emphasis added)

In the latest chapter, Interflora compiled a list of over 100,000 people who had bought flowers from their website or who had participated in a previous survey.  From this pool they found 13 people who they argued gave evidence of "real world confusion" that the use of words such as "M & S Flowers" in an advertisement displayed in a sponsored link following a Google search for INTERFLORA did not enable a reasonably well-informed and observant internet user to distinguish that that flower-delivery service did not originate from Interflora. The witness statements of this pool were drafted following calls from solicitors for Interflora who questioned them according to a script. The questions at issue were:

1. "What did you think when you saw M&S when you entered the search term INTERFLORA?"

2. Why do you say that?

3. And, if no connection between Interflora and M&S was given in the previous answers: "From your memory of these search results, what, if anything, do you think the results tell you about the relationship between Interflora and M&S?" (referred to by the court as Question [28])

Answers to the questions posed were compared by the Court with the corresponding part of the witness statements. "The witness statements", declared the Court, "paint a rather different picture to that given by the raw answers to the questions. The way the witness statements paint the picture is more favorable to Interflora's case….The witness statements eliminate much of the witnesses' hesitancy and uncertainty. They exclude key statements that some of the witnesses saw no connection between Interflora and M&S; and recognised that they were competitors. I do not consider that the witness statements are a fair reflection of the raw data. In my judgment, therefore, it is necessary to concentrate on the raw data rather than the witness statements." [The AmeriKat asks how one can express "hesitancy" in a witness statement?]

The Court then concentrated on the raw data and quickly started eliminating witnesses and evidence right, left and center. Mr Justice Arnold, the judge at first instance who permitted the evidence, stated that he considered the evidence to be of "some value in assisting the court" but that he did not consider the evidence was

"likely to be decisive, but nor does it appear of little or no value. How much weight to give it will be a matter for evaluation after the witnesses have been cross-examined and once it has been put in the context of all the other evidence at trial." 

The Court of Appeal, however, stated that the evidence adduced by Interflora was not representative (and thus helpful to the Court), because Interflora had also disclosed the answers to questionnaires of a further 24 interviewees who thought that there was no connection between Interflora and M&S. Arnold J had dismissed this argument which had been advanced by M&S by holding that there was no need for Interflora to have obtained statements from the other 24 individuals and if M&S wanted evidence from them they were free to contact them. The Court of Appeal held that this was an inadequate ground for dismissing the objection. Because one of problems with admitting evidence of this kind is that it can be too partisan, the burden shifts to the defendant to disprove the validity rather than the burden laying with the claimant to validate the evidence (where the proper burden should lay).

In Interflora I, the Court of Appeal held that:

"Such a burden could in my judgment only be justified if the party tendering the evidence can show that it is likely to have a real impact on the outcome of the trial."

Lewison LJ continued in this case by stating:

"In my judgment that is what the judge has done in this case. He has left it to M & S to amplify the range of responses to the questionnaire; and thus has imposed upon them the burden of disproving the validity of the selection. Mr Silverleaf submitted that any deficiencies in the witness statements could be explored and exposed in cross-examination for which Interflora had provided all the relevant material. But that, too, casts the burden on M & S to disprove the validity of the evidence rather than requiring Interflora to validate it at the "gatekeeping" stage." The Court continued to consider the questions themselves. Although it accepted that the answers to the first two questions were spontaneous reactions of members of the relevant public, it did not consider that the answers to the final question fell within that category. This was because they were answers only if the interview failed to mention a connection arising out of his or her experience in the real world - it was an attempt to "elicit an answer by means of an artificial stimulus".

The Court continued:

"Question 28 (to which the argument was directed) was not directed at the actual experience of the witnesses. That much is clear from the fact that it was only to be asked if the interviewee failed to mention a connection...The vice of question [28] is seen most clearly in the answer given by JA: "I guess from your question, I assume there must be some kind of relationship." I agree with Mr Hobbs that where one interviewee actually articulates the effect of the question, it is very likely that others either thought it; or did not realise the effect of the question on their answers. I have set out above a comparison of the evidence in the witness statements with the answers to questions on which that evidence is based. From that it can be seen that the evidence that Interflora wish to call is heavily dependent on the answers to question [28]. Without the answers to question [28] there is very little of it left."

Now on a roll, Lewison LJ stated that parties need to make an application to adduce this kind of evidence as soon as possible. Late applications, especially so close to a trial window, will not play favorably for a claimant in that it may place further unfair burden on the defendant who may wish to contact the claimant's witnesses or those subjects they interviewed who did not result in witness statements (i.e. the 24). As mentioned above, such unfair burden on a party will be taken into account by the court when giving permission to adduce this type of evidence. 

Sir Robin Jacob, who was also sitting on the case, agreed with Lewison LJ's judgment. He declared:

"When I first read the papers in this appeal I was inclined to take the view that this was no more than a case-management decision with which we should not interfere. But Mr Hobbs' direct focussing on the questionnaire and the witness statements convinced me that nothing of value could come out of the proposed evidence. Eight of the thirteen proposed witnesses had been exposed to the obviously unfair question [28]. The value of their evidence thereafter was obviously nil. Even if the remaining five stood up to cross-examination, one would be miles from being able to assess whether they were remotely representative of the public and so their evidence would be of no value.

This decision does not mean that the days of survey evidence are over. It is possible to conduct fair surveys and they may indeed lead to witnesses of value. And that may turn a case - some of the Jif lemon witnesses were of that character. But if the survey amounts to no more than scratching around for something and produces so little as this one has, then there is every good reason in common sense and procedural economy for excluding it along with any resultant witnesses. "

So the key lessons from this case are (i) make your applications to adduce survey evidence promptly; (ii) don't ask your witnesses leading questions; (iii) don't overly "lawyer" your witness statements; and (iv) don't annoy Lord Justice Lewison because otherwise he may strike you down with bold, CAPITAL font. 

But on a more serious note, the AmeriKat is unsure the extent to which she agrees with Sir Robin's assessment that the days of survey evidence are not over.  Although he refers to the evidence in the Jif lemon case, she wonders if for internet confusion cases such survey evidence which would satisfy the Court even actually exists?   What would fair Court of Appeal-proof questions look like in this case?  Or maybe its really not that hard and this was just a case of bad evidence.  Merpel wonders if there is a role for initial interest confusion in these types of cases and, if so, would the threshold for evidence be a bit lower than in this case? What do READERS think?