“For the future, the standard form of order should be redrafted so as to make it clear that: i) A party may conduct a true pilot survey without permission, but at his own risk as to costs; ii) No further survey may be conducted or adduced in evidence without the court’s permission; and iii) No party may adduce evidence from respondents to any survey without the court’s permission.” i) A party may conduct a true pilot survey without permission, but at his own risk as to costs; ii) No further survey may be conducted or adduced in evidence without the court’s permission; and iii) No party may adduce evidence from respondents to any survey without the court’s permission.”
“In deciding whether to give permission, the court must evaluate the results of whatever material is placed before it. Only if the court is satisfied that the evidence is likely to be of real value should permission be given. The reliability of the survey is likely to play an important part in that evaluation. Even then [and I interpolate this as the second stage] the court must be satisfied that the value justifies the cost. As Mr. Hobbs said, this requires the court to conduct a cost/benefit analysis. In a case of trade mark infringement in which the issue is one of deception in relation to the provision of ordinary consumer goods or services, these criteria are likely to be satisfied only in a special or unusual case.”