England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE ARNOLD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd March 2013

Lord Justice Lewison:

1. This is the latest battle in the long war of attrition between Interflora and Marks and Spencer ("M&S"). The background is set out in my judgment in an earlier battle at [2012] EWCA Civ 1501, [2013] ETMR 11. I will assume that anyone interested in this judgment either has or will read it. Suffice it to say that, M&S having successfully attacked the grant of permission to Interflora to adduce evidence from witnesses selected from a witness selection programme, Interflora counter-attacked by seeking and obtaining permission to call evidence from witnesses who, they say, give evidence of confusion in the real world. On 21 February 2013 Arnold J granted that permission. His decision was at [2013] EWHC 273 (Ch). Normally this court would regard that as a discretionary case management decision, but Kitchin LJ recognised that it raised a question of principle. For that reason we gave permission to appeal. Because the trial is due to begin in mid-April, the appeal has been expedited.
2. Interflora compiled a list of over 100,000 people who had either bought flowers through Interflora's website or who had participated in a previous survey. From that potential pool of over 100,000 people, Interflora had managed to find 13 who, they say, give evidence of real world confusion. It was the evidence of these 13 people on which Interflora wished to rely in support of their contention that the use of words such as "M&S Flowers" in an advertisement display as a sponsored link on a computer screen following a Google search for Interflora is insufficient to enable a reasonably well-informed and reasonably observant internet user to tell that the flower delivery service offered by M&S does not originate from Interflora. The judge allowed this evidence to be called.
3. For reasons that I will give in a written judgment to be handed down in due course, I have concluded that the judge was wrong and that the appeal ought to be allowed. Interflora seek permission to file a Respondent's Notice by way of cross-appeal against Arnold J's refusal to order M&S to produce a list of customers who had googled Interflora, clicked on the M&S link, and gone on to buy flowers from M&S. The judge was doubtful whether he had the power to order M&S to create such a document, but assuming that he had, he nevertheless refused the application. The purpose of requesting the list was to enable Interflora to contact the M&S customers in question in order to identify persons who might have been confused and to obtain witness statements from them. In other words, as the judge rightly said, the information was information that was not directly relevant to any of the issues in the case but was information leading to a train of inquiry that might produce relevant evidence. Disclosure of this material would have been at the outer limits of the old Peruvian Guano test for discovery. The judge held that if Interflora were not to be permitted to call the evidence of its own 13 witnesses, that then it would follow that they should not be allowed to carry out the proposed exercise in relation to M&S's customers.
4. I agree. Since I would allow the appeal, I would refuse permission to cross-appeal on this issue. However, I go further. The judge gave a number of reasons for rejecting the application. They were in summary (1) the customers in question had their own expectation of privacy, which would be invaded by the exercise; (2) M&S have their own interests in maintaining good relations with their customers, which might be damaged if they were forced to hand over a list of customers; (3) the exercise of identifying the customers might take up to seven or eight working days, and that would be only the start of the exercise; and (4) overall the exercise would be disproportionate. In my judgment, those were conclusions to which the judge was entitled to come. Moreover, to make such an application less than three months before trial, in the context of a case that has been running for many years, was in my view too late. Mr Silverleaf QC accepted that if his cross-appeal were to succeed the trial date would be lost. Quite apart from all the other reasons for refusing permission to appeal, that one in my judgment is compelling.
5. Accordingly I would refuse permission to cross-appeal.

Sir Robin Jacob:

6. I agree.

Lord Justice Longmore:

7. I agree also.

Order: Appeal allowed; permission to cross-appeal refused