A & E Television Networks LLC & Anor v Discovery Communications Europe Ltd.

Permission for survey evidence should be refused at an interim stage only where it is sufficiently clear that the survey will produce evidence that is irrelevant, misleading, inadmissible, insufficiently probative or disproportionate. Where the evidence may have value and its significance cannot fairly be determined in advance, the survey should generally be permitted, leaving detailed evaluation to trial. Case management must prevent wasted costs without becoming micro-management or satellite litigation. The court may control methodology and impose a costs cap where the chosen method is unnecessarily expensive, while permitting the survey itself.

The claimants brought proceedings for trade mark infringement and passing off concerning the defendant’s use of the name Discovery History. They sought permission to conduct a survey, to rely on evidence from witnesses identified through that survey, and to use material from earlier pilot surveys. The defendant challenged the proposed questions, the use of trainee solicitors, and the admissibility of evidence from the pilot surveys.

The court had to determine the proper scope of interim case-management control over survey evidence, whether the proposed survey was sufficiently flawed to be prohibited, and whether permission should be given in advance for evidential material arising from the pilot surveys.

1. Proposed survey. The court’s function was not to settle a joint survey or produce one acceptable to the defendant. It was to prevent a survey proceeding where it was sufficiently clear that the results would be irrelevant, misleading, inadmissible, insufficiently probative or disproportionate. If the survey had a real potential to produce useful evidence, detailed assessment should generally be left to trial.
2. The proposed questions were not shown to be loaded, misleading or valueless. The court therefore permitted the claimants to conduct the survey in the form proposed. It rejected attempts to require a different presentation of the name or logo, an additional question asking respondents why they gave their answers, stronger wording concerning possible legal proceedings, and revised interviewer instructions.
3. Methodology and costs. The use of trainee solicitors was not shown likely to taint the survey, particularly as trainees uninvolved in the dispute would be used. It was, however, an unnecessarily expensive method. If the claimants used trainee solicitors, any recoverable survey costs were capped at the amount that would have been incurred using a reasonably priced and respected market research organisation.
4. Pilot surveys. It could not be concluded at that stage that evidence arising from the pilot surveys would inevitably be worthless or inadmissible. However, the claimants had not identified the witnesses or material relied upon, and advance permission to serve witness statements or Civil Evidence Act notices would be premature and unparticularised. The court therefore declined both to exclude the evidence in limine and to give it advance approval.
5. The appropriate orders were permission to administer the proposed questionnaires and to serve witness statements from witnesses identified through them, but no advance permission for Civil Evidence Act notices relating to the pilot surveys or the future survey responses.