Interflora Inc v Marks & Spencer Plc

An interlocutory case-management decision permitting a party to call selected witnesses on alleged real-world confusion was held wrong and the appeal was allowed. A request for customer information intended only to identify further potential witnesses was refused where it was not directly relevant, engaged privacy and commercial-relations concerns, would be time-consuming and disproportionate, and was made less than three months before trial. The risk of losing the trial date was compelling. Permission to cross-appeal against that refusal was therefore refused.

In underlying proceedings, Arnold J granted Interflora permission to call 13 witnesses identified from a pool of more than 100,000 people. Their evidence was said to show real-world confusion arising from sponsored-link advertising. He refused to order Marks & Spencer to produce a list of customers who had searched for Interflora, clicked its link and bought flowers, because the proposed exercise sought information leading to a possible train of inquiry and was disproportionate.

Marks & Spencer appealed from the decision reported at [2013] EWHC 273 (Ch). Interflora sought permission to cross-appeal against the refusal to order production of the customer list. The central issues concerned the appellate treatment of the evidence decision and whether permission should be granted for the proposed customer-identification exercise.

Lord Justice Lewison gave the reasons for judgment. Lord Justice Longmore and Sir Robin Jacob agreed.

1. Evidence decision. Case-management decisions are ordinarily discretionary. The Court of Appeal nevertheless granted permission to appeal because the decision raised a question of principle. The court concluded that Arnold J was wrong to permit Interflora to call evidence from the 13 selected witnesses and allowed the appeal. The supplied judgment stated that detailed reasons for that conclusion would follow in a written judgment.
2. Proposed customer list. The requested information was not directly relevant to the issues. It would merely have led to a train of inquiry which might produce relevant evidence. The proposed disclosure was described as lying at the outer limits of the old Peruvian Guano test for discovery. The court agreed with Arnold J that, if the 13 witnesses could not be called, Interflora should not be permitted to undertake the equivalent exercise using Marks & Spencer’s customers.
3. Proportionality and timing. The judge was entitled to take account of customers’ expectations of privacy, Marks & Spencer’s interest in maintaining customer relations, the seven or eight working days required merely to identify the customers, and the disproportionate nature of the overall exercise. An application made less than three months before trial, in litigation continuing for many years, was too late. The likely loss of the trial date was a compelling additional reason for refusal.

Order: appeal allowed; permission to cross-appeal refused.

1. Court of Appeal (Civil Division): Allowed the appeal against Arnold J’s case-management decision and refused permission for Interflora’s proposed cross-appeal.
2. High Court of Justice, Chancery Division: Arnold J granted permission to call the 13 witnesses and refused to order production of the proposed customer list: [2013] EWHC 273 (Ch).