LIFESTYLE EQUITIES C.V. v ROYAL COUNTY OF BERKSHIRE POLO CLUB LTD

Practice Direction 57AC does not alter the law governing the admissibility of evidence. Experienced witnesses of fact may give admissible trade evidence about market conditions, customers and consumer behaviour. Their evidence may include opinions derived from relevant knowledge and experience, where those opinions convey facts personally perceived by them.

Such evidence does not ordinarily require compliance with CPR Part 35 merely because it includes opinion or has been checked against documents. Evidence which is, in truth, expert opinion on the ultimate issue remains subject to that regime. Applications to strike out witness-statement passages under PD57AC should be proportionate. Minor or readily identifiable infractions do not normally justify excision; a substantial breach should be apparent and capable of efficient resolution.

The claim concerned alleged trade mark infringement, invalidity and revocation, and conspiracy to injure by unlawful means. The claimants owned the BEVERLY HILLS POLO CLUB brand. The remaining defendants used signs featuring ROYAL COUNTY OF BERKSHIRE POLO CLUB, including in overseas territories.

At the pre-trial review, the claimants applied to strike out substantial parts of two defence witness statements under Practice Direction 57AC. The witnesses were the first defendant’s general manager and its Latin American licensing agent. Their evidence concerned the market for polo-themed brands, coexistence, consumer behaviour, licensing activity and the absence of confusion.

The central issue was whether this trade evidence was admissible without being presented as expert evidence under CPR Part 35, and whether the alleged PD57AC breaches justified strike-out.

1. The application was dismissed with costs. The impugned passages were overwhelmingly admissible trade evidence. Any minor departure from PD57AC did not make excision reasonably necessary.

2. PD57AC does not change the law of admissibility or displace earlier authority on what evidence may be received. It should be enforced proportionately. It is not a device for removing isolated words, minor argument, or insignificant imperfections from a witness statement. A strike-out application should ordinarily be reserved for a substantial breach, such as one apparent enough to be resolved efficiently, potentially on the papers.

3. The court applied Fenty v Arcadia. In trade mark and passing-off litigation, a suitably experienced person in the trade may give evidence about the factual circumstances of that trade, including customers’ behaviour and market conditions. The evidence may contain opinions founded on the witness’s own knowledge and experience without thereby becoming CPR Part 35 expert evidence.

4. Section 3(2) of the Civil Evidence Act 1972 was not confined to simple observations. An opinion can convey several relevant facts personally perceived through a witness’s work. The Latin American agent’s opinion that the market was crowded and that polo brands coexisted without confusion was capable of conveying his perceptions of competing brands, coexistence, absence of reported confusion and his familiarity with the market.

5. A witness’s use of internet searches or documents to check recollection, support evidence and prepare for cross-examination did not, without more, convert trade evidence into expert research. The distinction was between refreshing knowledge of brands encountered in the trade and research identifying wholly unfamiliar brands. The latter issue, and the reliability and weight of the evidence generally, were matters for trial and cross-examination.

6. The court made no finding that the witnesses’ views were correct or that they should carry weight. Nor did it determine the ultimate trade mark issues. It held only that the statements could remain for the trial judge’s assessment. The defendants’ costs were summarily assessed at £14,000.

not stated in the judgment.