The use of survey evidence in civil litigation - Hassans represents Gibtelecom in important pre-trial application

Adducing survey evidence – Supreme Court of Gibraltar clarifies procedural requirements

On 4 December 2025, the Supreme Court of Gibraltar handed down judgment on a strike out application brought by the Defendants in the Gibtelecom Limited v Gibfibre Limited & Others (2022/ORD/096) proceedings.

The 31-page judgment dismissed the Defendants’ application and found in favour of Gibtelecom. It contains important findings and clarification in respect of the procedural requirements which parties must fulfil in order to rely on survey evidence for the purposes of quantifying damages at trial.   

Gibtelecom was represented by Anthony de Garr Robinson KC, Moshe Levy and Samuel Marrache, instructed by Hassans. Brian Caetano and Louise Martinez also formed part of the Hassans’ team working on this application. 

Factual background

Gibtelecom commenced proceedings against the Defendants in October 2022. Gibtelecom seeks damages from the Defendants for unlawful means conspiracy and causing loss by unlawful means. Its central allegation is that the Defendants combined together to engage in a scheme which involved (i) unlawfully obtaining copies of TV channels from the UK and elsewhere; (ii) providing these channels to most homes in Gibraltar, and (iii) bundling this unlawful TV service with Gibfibre’s residential broadband service so that the TV was delivered together with their broadband. Gibtelecom alleges that this caused the Defendants to gain a significant competitive advantage over it and thereby cause Gibtelecom to lose customers to Gibfibre. 

The trial in these proceedings was heard over two and a half weeks from 4 to 19 December 2025. The parties are currently awaiting judgment and this article does not deal with the evidence or submissions heard at trial. 

Survey evidence

One of the issues between the parties is the extent of customer switching from Gibtelecom to Gibfibre in the counterfactual scenario where the Defendants never provided the unlawful TV service in Gibraltar. This was the subject of the expert evidence adduced by the parties in order to quantify damages. 

As part of that quantification exercise, Gibtelecom instructed an economic expert in conjoint surveys – Dr Andreas Groehn of Berkeley Research Group, to design, and analyse the results of, a conjoint survey in Gibraltar. Conjoint surveys operate by asking respondents to make a series of decisions between different product options (with varying features) and therefore model their preference for specific features of the options they were presented. In this case, the survey was being relied on to calculate the change in subscribers who would have purchased Gibtelecom’s offering in the counterfactual world where the unlawful TV service was not provided, i.e., it isolated the impact the unlawful TV service has on an individual's decision to switch between providers. 

The Defendants applied to strike out this evidence arguing that Gibtelecom did not have permission to introduce survey evidence, that the Court had a duty to restrict expert evidence to that which was reasonably required to resolve the proceedings, and that admitting this evidence would be contrary to the overriding objective. 

Specific permission for survey evidence

Mr Justice Happold’s judgment engages with each of the Defendants’ objections to Dr Groehn’s evidence. One particularly important part of the judgment is the discussion on the extent to which special rules for permission to rely on survey evidence apply to non-IP related proceedings. 

The Defendants argued that the well-known Interflora principles (originating from Interflora Inc v Markes and Spencer plc [2013] 2 All ER 663, [2012] EWCA Civ 1501) applied to these proceedings. In Interflora, Lewison LJ explained that a practice had developed to require directions to be sought before survey evidence could be admitted. The Defendants argued that despite the parties previously having received permission from Restano J to rely on expert evidence for the purposes of calculating quantum, no specific permission had been sought for survey evidence and that therefore, it should not be admitted.  

In response, Gibtelecom argued that the Interflora principles (and related case law) were confined to trade mark and passing off proceedings. 

Having conducted an analysis of the relevant cases relied on by the Defendants, Mr Justice Happold found that the requirement to obtain special permission to adduce survey evidence had never been extended beyond trade mark and passing off cases to have general effect in civil litigation. This was an important finding which ratified the Claimant’s approach to admitting Dr Groehn’s evidence in these proceedings, and established that the Interflora principles on permission to adduce survey evidence had no effect beyond specific IP-related proceedings. 

Happold J also recorded that the Claimant’s survey had complied with the Whitford Guidelines (a set of guidelines which are expected for survey evidence), that full disclosure had been provided by the Claimant and that questions as to the use of Dr Groehn’s survey were matters for trial. 

The judgment can be found here: https://www.gcs.gov.gi/uploads/judgments/supremecourt/2025/12_gibtelecom_v_gibfibre.pdf#viewer.action=download