Interflora Inc & Anor v Marks and Spencer Plc & Anor

Civil Procedure Rules 1998, Part 35 regulates evidence prepared by a person instructed to give or prepare expert evidence for the proceedings. It does not regulate published reports or academic articles merely because they contain specialist opinion. Such material may be admissible under the ordinary law of evidence and the Civil Evidence Act 1995, subject to the court’s case-management powers and the requirements of fairness. Late reliance does not automatically justify exclusion. The court should consider the notice given, the opposing party’s opportunity to investigate and rebut the material, the selectivity of the evidence, and whether the court can understand and evaluate it without expert assistance.

The claim concerned proceedings in which the claimants sought to rely on Ofcom reports, a Google document, a YouGov report and academic articles about internet literacy and users’ understanding of paid search advertising. The material was served with a hearsay notice under section 2 of the Civil Evidence Act 1995 and Civil Procedure Rules 1998 rule 33.2 shortly before trial.

The defendants objected on the grounds that the material constituted expert evidence which could be admitted only under Part 35, or alternatively that it should be excluded as unfair and prejudicial under the court’s case-management powers.

1. Objection dismissed. The court declined to exclude any of the documents.

2. Part 35 contains no general definition of expert evidence. Rule 35.2(1) defines an expert for the purposes of the Part as a person instructed to give or prepare expert evidence for the proceedings. Read in that context, rules 35.4 and 35.5 regulate the calling of instructed experts and the tendering of their reports. They do not control the admission of published material produced independently of the litigation, even where it contains expert opinion.

3. Reports and academic articles of that kind may be admissible at common law and are not excluded by the hearsay rule because of the Civil Evidence Act 1995. The construction adopted was supported by Phipson on Evidence and avoided the impractical consequence that scientific literature relied on and exhibited by an admitted expert would itself become inadmissible.

4. The court nevertheless retained case-management powers under Civil Procedure Rules 1998 rules 1.4 and 32.1 to exclude technically admissible material where reliance on it would be unfair. Relevant considerations included whether the opposing party had adequate notice and a fair opportunity to investigate or rebut it, whether the material represented a selective sample, and whether the court could understand and evaluate it without being turned into its own expert.

5. On the facts, the notice was late but not out of time. The defendants had been aware for over a year that publicly available evidence of internet users’ understanding might be relevant, and had chosen not to conduct their own search. The judge was able to understand and evaluate the material, and the defendants’ selective objections undermined the fairness objection. The evidence was therefore admitted.