Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd & Ors

Permission for expert evidence should be granted only where the proposed evidence is properly characterised as expert evidence and is reasonably required to resolve the proceedings. The court should first identify the issues and determine whether the evidence is necessary, merely helpful, or reasonably required in the context of the proceedings as a whole. Evidence describing professional or trade practice is not necessarily expert evidence. Where witnesses are principally describing their own experience and there is no reliable body of knowledge or standard practice on which to base an expert opinion, the evidence may be given as ordinary factual evidence. An open-ended application, insufficiently connected to defined issues and proposed witnesses, should be refused.

The claimants brought passing-off proceedings concerning the get-up of inhalers and their packaging. The defendants sought permission under CPR Part 35 to rely on evidence from a respiratory specialist, a general practitioner and a pharmacist concerning inhaler treatments and the prescribing and dispensing practices of healthcare professionals.

The claimants accepted that evidence concerning those areas would be required, but submitted that it could be given by witnesses of fact. The defendants relied on the absence of an in-house United Kingdom GP, pharmacist or respiratory consultant and argued that expert evidence would assist the court. The central issue was whether the proposed evidence was expert evidence requiring permission and, if so, whether it was reasonably required to resolve the proceedings.

1. Application refused. The defendants had not shown that the proposed evidence was properly characterised as expert evidence or that the open-ended permission sought was justified. The court nevertheless permitted a further application if a focused form of limited expert evidence could later be shown to be of real assistance.
2. Under Civil Evidence Act 1972, section 3(1), expert opinion is admissible subject to the rules of court. Under CPR 35.1, the court must restrict expert evidence to that which is reasonably required to resolve the proceedings. The approach in British Airways Plc v Spencer [2015] EWHC 2477 (Ch) was helpful: ask whether evidence is necessary to resolve each issue; if not, whether it would assist the court; and, if so, whether it is reasonably required in the proceedings as a whole.
3. There was an anterior question: whether Part 35 was engaged at all. Evidence about medical conditions, inhaler types and active ingredients was principally factual and largely non-contentious. It was not shown to require expert explanation. Evidence about prescribing and dispensing practices was also likely to describe what the individual professionals did, or believed others did, rather than an opinion founded on a reliable body of knowledge. The defendants’ own evidence acknowledged that there was no standard model and that many variables affected the process.
4. The observations in Fenty v The Arcadia Group Brands Ltd (1) [2013] EWHC 1945 (Ch) were relevant. Evidence of trade or professional practice may be given by witnesses of fact, even where their experience leads them to express opinions. It becomes expert evidence only when it is properly founded on expertise rather than merely on the witness’s own practice and experience.
5. The application also lacked sufficient particularity. The proposed experts, their qualifications, their evidence and the issues to which it would relate were not adequately identified. The defendants therefore failed to discharge the burden imposed by CPR 35.1 and CPR 35.4.

First-instance case management decision. The judgment itself records earlier Court of Appeal decisions concerning summary judgment on trade mark validity and joinder, but this application was determined by the High Court.