EXPERTS NOT WELLCOME HERE (NOT YET ANYWAY): PARTIES NEED TO ESTABLISH NEED FOR EXPERT EVIDENCE

June 29, 2017 · by · in Applications, Civil evidence, Expert evidence

In Glaxo Wellcome Uk Limited -v- Sandoz Limited [2017]  EWHC 1524 (Ch) Chief Master Marsh refused the defendants’ application to rely on three expert witnesses. The judgment contains interesting observations on the nature of the information that needs to be placed before the court when a party is applying to rely on expert evidence. The duties of the parties in relation to identifying the issues between them and the difference between “expert” evidence and evidence which requires some expertise but cannot properly be categorised as expert evidence within CPR 35.

“In this case, the Court is asked to give permission to the parties (if permission is given to the Defendants the Claimants also wish to have permission) in advance without knowing the identity of the proposed expert witnesses, their qualifications (other than in the most general terms), their relevant professional experience and what evidence they are able to give. Importantly, the Court does not know at this stage what elements of their evidence, if any, may properly be characterised as expert evidence as opposed to the evidence of fact (that is non-expert fact) they may be able to give without the need for permission under CPR Part 35.”

“The starting point should be that instead of seeking permission to adduce expert evidence, the parties should engage with each other and establish whether there are genuine fault lines between them. As it seems to me, with reasonable efforts it should be possible to agree relevant facts. If that does not prove to be possible, based on the evidence before me, the differences are unlikely to be such as to require expert evidence even taking into account the financial value of the claim to the parties.”

USEFUL READING ALONGSIDE THE GLAXO CASE

It is worth reading the Glaxo case in conjunction with the judgment of Mr Justice Arnold in Astex Therapeutics Limited -v- Astranzenca AB [2017] EWHC 1442 (Ch) which was discussed in an earlier post. There the judge observed

“The moral of the story, which is not a new one, is that what is required is clear identification of the issues which experts are going to be asked to address before the experts are instructed. Only if the issues are clearly identified is it possible to ascertain whether the experts can give evidence directed to those issues which is (a) admissible and (b) likely to be of sufficient weight for the cost of preparing their evidence to be proportionate to what is at stake.”

THE  GLAXO CASE

The claimants brought an action for trade mark infringement in relation to inhalers.  The defendants counterclaimed in relation to the validity of the trademark and that aspect of the case was stayed pending a possible appeal to the Supreme Court.  The remaining issue relates to the passing of the products.

THE APPLICATION

The defendant applied for permission to rely on three experts.
The application
    1. The scope of the permission sought from the Court has developed from the way it was put forward initially in correspondence by the Defendants providing a revision to the draft order for directions. The application is supported and explained by two witness statements; one from Dr Christopher Goode who is the Medical Director of the First Defendant and the second from Dr Anke Nordemann-Schiffel who is a partner in the law firm Boehmert & Boehmert of Berlin, Germany. The Claimants have provided a short witness statement in reply from Mr Eifion Wyn Morris who is a partner with Stephenson Harwood LLP.
    2. The application as it is expressed in the draft order is:
“16. That each party has permission to adduce expert evidence in the fields of:
16.1 The medical conditions treatable by the use of inhalers, including the types of inhalers and the active ingredients which they contain which are employed for the treatment of such conditions.
16.2 The practice of healthcare professionals, including general practitioners, in relation to prescribing inhalers.
16.3 The practice of healthcare professionals, including general practitioners, in relation to dispensing prescriptions relating to inhalers.
17. The Claimants together have permission to adduce the same expert evidence from up to three experts and the Defendants together have permission to adduce the same expert evidence from up to three experts.”
THE LAW IN RELATION TO EXPERTS
    1. Under Section 3(1) of the Civil Evidence Act 1972 subject to any rules of Court, “… where a person is called as a witness in any civil proceedings, his opinion on any relevant matter of which he is qualified to give expert evidence shall be admissible in evidence.”
    2. Under CPR 35.1, the Court is under a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings. In British Airways Plc v Spencer [2015] EWHC 2477 (Ch) Warren J (at [68]) proposed a three stage test based upon the sliding scale that is implicit in CPR 35.1.
“(a) The first question is whether, looking at each issue, it is necessary for there to be expert evidence before that issue can be resolved. If it is necessary, rather than merely helpful, it seems to me that it must be admitted. 

(b) If the evidence is not necessary, the second question is whether it would be of assistance to the court in resolving that issue. If it would be of assistance, but not necessary, then the court would be able to determine the issue without it (just as in Mitchell the court would have been able to resolve even the central issue without the expert evidence).

(c) Since, under the scenario in (b) above, the court will be able to resolve the issue without the evidence, the third question is whether, in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings. In that case, the sort of questions I have identified in paragraph 63 above will fall to be taken into account. In addition, in the present case, there is the complication that a particular piece of expert evidence may go to more than one pleaded issue, or evidence necessary for one issue may need only slight expansion to cover another issue where it would be of assistance but not necessary. Further, although CPR 35.1 does not refer to issues, but only to proceedings, if evidence is not reasonably required for resolving any particular issue, it is difficult to see how it could ever be reasonably required for resolving the proceedings. I therefore see a test directed at issues as a filter. That, at least, is an approach which can usefully be adopted.”

    1. CPR 35.4 provides the Court’s powers with which it is to fulfil the duty to restrict expert evidence. In addition to the requirement for permission in rule 35.4(1) the rule provides:
“(2) When the parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.”
    1. I was referred to a passage in the notes to the current edition of the White Book at 35.2.2 where it is said:
“The functions of an expert witness may include giving assistance to the Court on, for example, a technical or scientific matter, or specialist practice or procedure, and giving their opinion on specific matters in the dispute within their expertise. However, it is not the function of an expert witness to give their opinion on the issues of law or fact which the judge or jury has to decide.” [my emphasis]
    1. I was also referred to the judgment of Birss J in Fenty v The Arcadia Group Brands Ltd (1) [2013] EWHC 1945 (Ch) where he deals in detail with what can be described by way of shorthand as “trade evidence” in trade mark and passing off claims. In that case, neither party had obtained permission to rely on expert evidence and witness statements had been exchanged only a matter of weeks before the trial was due to commence. Objections were raised by the defendants concerning the admissibility of some of the witness statements served by the claimants, these being witness statements from members of the relevant trade. Having undertaken a review of the law concerning expert evidence as it relates to trade mark and passing off cases, Birss J agreed with the observation of Lewison J (as he then was) in O2 Holdings Ltd v Hutchinson 3G Ltd [2006] EWHC 601 at [9] that the formulation of an overall test concerning expert evidence is an impossibility. Birss J sets out a series of conclusions in the following passage:
“31. First, the category identified by Maurice Kay LJ [in esure Insurance Ltd v Direct Line Insurance Plc [2008] EWCA (Civ) 842 is not the only kind of expert witness evidence covered by CPR Part 35. For example, in patent cases expert evidence is routinely called from persons who are not professional experts and do not necessarily belong to bodies with recognised standards and rules of conduct.
32. Secondly, independence is not what takes such evidence into the relevant category. There are numerous examples of evidence from experts who are not in fact independent at all. That may be fine, as long as the nature of any link with either side is identified and taken into account.
33. Thirdly, it seems to me that the nature of the proceedings and the role the evidence is to play in those proceedings is an important element in characterising the evidence in question.
34. Fourthly, sometimes parties do call an expert report identified as such in trademark and passing off cases. It is important to note that there is no issue in esure… or Samuel Smith [2012] FSR 7 that Mr Blackett’s evidence was expert evidence. As I say, it was identified as such. So the difficulty before me did not arise in those cases. I should say that in this judgment I am not expressing a word of disagreement with the decisions I have referred to above, which emphasises the lack of utility of anyone – trade witness or a self-identified expert in ‘branding’ – giving an opinion on the likelihood of confusion in a case about a market that the Court is likely to be familiar with.
35. Fifthly, for years trademark and passing off case have routinely included evidence from persons in the relevant trade describing the circumstances of the trade, the nature of customers and so on. Such evidence would always have explained the experience of the witness in order to justify their evidence and add credibility to it. That evidence will always consist of factual statements about the trade. Although it is primarily factual, it will sometimes include statements which are, properly analysed, expressions of opinion. They are not necessarily opinions simply on likelihood of confusion but are expressions of opinion about how customers behave. However, it is clear, and I refer, for example, to Hasbro [2011] FSR 21, that such evidence has not always been treated as expert evidence as such and has not hitherto been regarded necessarily as subject to the regime in CPR Part 35. Hasbro is also an example showing that as long as it is kept in its proper place, not characterising it as expert evidence within CPR Part 35 does not matter.
36. Moreover, to impose the further burden of the duties and responsibilities of expert witnesses on such witnesses is capable of having a chilling effect in trademark and passing off cases.”
    1. The judge went on later in the judgment [39] to say:
“But, in my judgment, in a trademark and passing off case, evidence of the factual circumstances of a trade by a person in that trade, even when they deploy their experience in that trade to bolster what they are saying, is not necessarily “expert evidence” within CPR Part 35. Apart from anything else, there is no reason to treat it as such. However, the fact that evidence is not labelled as an expert’s report does not mean it is not in truth expert evidence.”

THE MASTER’S CONCLUSIONS: EXPERT EVIDENCE NOT NECESSARY

“Discussion
  1. In Fenty v Arcadia, the judge had the benefit of being able to read the relevant statements and to form a view about whether they were properly to be characterised as expert evidence in relation to which they would not be admissible without permission and in relation to which the provisions of CPR Part 35 would apply. In this case, the Court is asked to give permission to the parties (if permission is given to the Defendants the Claimants also wish to have permission) in advance without knowing the identity of the proposed expert witnesses, their qualifications (other than in the most general terms), their relevant professional experience and what evidence they are able to give. Importantly, the Court does not know at this stage what elements of their evidence, if any, may properly be characterised as expert evidence as opposed to the evidence of fact (that is non-expert fact) they may be able to give without the need for permission under CPR Part 35.
  2. Furthermore, unhelpfully the parties were unable to come near to agreeing a list of issues prior to the CMC. The Claimants provided a draft list of issues to the Defendants but instead of commenting and amending that draft, the Defendants drafted their own list of issues in an entirely different style. At the hearing the Court was asked to provide guidance on the right approach in the hope that the parties will be able to reach agreement. In a case of any complexity it is essential when considering whether to grant permission to adduce expert evidence for the Court to be able to relate the proposed expert evidence to specific issues. Furthermore, CPR Part 35.4(3) permits the grant of permission to be limited to identified issues and in my view this is generally desirable.
  3. It is incumbent upon the Defendants to satisfy the Court that permission to rely upon expert evidence should be granted and that onus must be seen in the light of the Court’s duty under CPR 35.1 to restrict expert evidence to that which is reasonably required to resolve proceedings. It is not the Defendants’ case the expert evidence is necessary in the sense that the Court could not try the case without it. The application is put forward relying on the second and third limbs of the approach adopted by Warren J in British Airways v Spencer. I find that approach to be a helpful one but it is necessary in this case to consider as an anterior issue whether CPR Part 35 is engaged at all. In other words, is it expert evidence the Defendants wish to adduce?
  4. It is common ground between the parties that the Court will need evidence within the three areas proposed by the Defendants. The circumstances of this case are such that the Court cannot be expected to have knowledge of the relevant trade practices (more strictly described as professional practices of respiratory specialists, GPs and pharmacists). The Court will need to understand what commonly happens when products of the relevant type are prescribed and dispensed.
  5. There is, however, a distinction between the first area of expert evidence and the remaining two areas. The first area seeks to provide the Court with factual information about the medical conditions treatable by the use of inhalers and the types of inhalers and the active ingredients which are employed for the treatment of such conditions. I accept there may be instances in which didactic evidence may properly be described as expert evidence because it is in a field in which the Court cannot be expected to obtain an understanding without evidence from an expert that goes beyond a mere description of facts and includes explanation and illustration. However, in this case there is cogent evidence provided by the Claimants in the statement of Mr Eifon Wyn Morris that the parties have not found the sort of information in category (1) to be contentious. Even if it goes too far to say the evidence has been agreed, evidence of the type the Defendants now say requires the involvement of experts has been provided in a number of related proceedings in the EU.
  6. It is not in doubt that this evidence will be of assistance to the Court. I am not convinced, however, that it is properly characterised as expert evidence because it is not a matter of opinion and is not didactic evidence that neither need be contentious nor require explanation from an expert. If I am wrong about its nature, I am not satisfied that evidence from an expert is reasonably required. The starting point should be that instead of seeking permission to adduce expert evidence, the parties should engage with each other and establish whether there are genuine fault lines between them. As it seems to me, with reasonable efforts it should be possible to agree relevant facts. If that does not prove to be possible, based on the evidence before me, the differences are unlikely to be such as to require expert evidence even taking into account the financial value of the claim to the parties.
  7. I would add that I can see no possible basis for expert evidence dealing with the first area to be required from both a respiratory specialist and a GP.
  8. Turning to the second and third areas, one of the difficulties for the Defendants is that their own evidence accepts there is no relevant standard model for how the process of assessing the medical needs of patients, deciding upon their treatment, providing treatment to them and prescribing and dispensing works. The Defendants say, in the evidence of Mr Goode, that there are many variables that need consideration. I find it difficult to understand, therefore, how it can be suggested that the three medical professionals upon whom the Defendants seek to rely can be expected to provide a reliable opinion based upon a body of knowledge. There is an overwhelming likelihood that such witnesses will, in reality, be providing evidence about what they would do in any given circumstance, and about what Dr Goode describes as their experience of the “many variables”, rather than providing what is properly regarded as expert evidence based upon an assumed set of facts. As it appears to me, the Defendant wishes to adduce evidence of fact in relation to the second and third areas. There is no requirement for permission to be obtained from the Court for that purpose.
  9. In any event, the Court faces particular difficulty in seeking to characterise with any degree of accuracy the type of evidence the Defendants wish to introduce based on the very limited description of it which has been provided so far. Had the application been supported with evidence about the identity of the likely individuals who will be introduced as experts, their own experience and the sort of evidence that they might give it would have been better founded because it would have been possible to identify evidence that might properly be characterised as expert evidence.
  10. It follows that I am not satisfied that the Defendants are seeking permission to introduce evidence which is properly characterised as expert evidence.
  11. I also have in mind the observations made by Birss J in Fenty v Arcadia about descriptive evidence of trade or professional practices commonly being introduced in trade mark and passing off cases without being regarded as expert evidence. It is one thing for a witness to give evidence about his or her experience in a particular area from which the Court itself is able to extrapolate and quite another for a witness to give evidence which is founded in a body of expertise rather than the witness’ own experience. And in case I am misunderstood on this point, of course I accept that the medical professionals of the types referred to by the Defendants have a high degree of training and are regulated. I am not convinced, however, that the evidence they might give is necessarily rooted in that training but rather is simply evidence of what they do as a matter of practice and believe others to do.
  12. It is therefore unnecessary for me to go further in the analysis indicated above. In the most general terms, the evidence in the three categories is necessary and I accept that evidence of trade practices is an area which expert evidence may sometimes properly cover. However, the Defendants have not made out their case with sufficient particularity and in my judgment it would be wrong to grant the sort of open ended permission they seek when it appears the evidence they wish to introduce can be made available to the Court from non-expert witnesses. To my mind there is some force in Mr Malynicz QC’s submission that the Defendants’ application is an attempt to brand evidence from the three medical professionals as “expert” to enhance its value whereas, in reality, it should properly be seen as ordinary evidence of the type normally introduced in claims of this sort. I recognise, of course, that CPR Part 35 brings with it the benefits of control by the Court and that the form of the evidence, with a special statement of truth, may have greater value. There are perhaps some disadvantages in leaving this area of evidence for the trial unregulated. On balance, however, the Defendants have not discharged the onus that is upon them and for the reasons given above, their application is refused.
  13. Although it should not be seen as encouragement to re-apply in the same terms, the parties have permission to apply in respect of expert evidence in the event that in light of a more focussed consideration of the evidence that will be needed at the trial of the claim, limited expert evidence can be shown to be likely to be of real assistance to the Court.

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