- Surveys are being used increasingly in civil litigation, particularly in class certification, antitrust, intellectual property, employment class actions and false advertising cases.
- Pointers on how to make survey evidence robust and therefore acceptable to the court.
Surveys have been gaining prominence across a range of civil litigation actions and are being used increasingly in class certification, antitrust cases and intellectual property matters (eg trademark infringement proceedings), as well as in employment-related class actions.
They also have become common in false advertising cases, as they can provide two types of key evidence: in cases in which the advertising is literally false, surveys often provide evidence on the materiality of the claim; and in cases in which the claim is not literally false but potentially misleading, surveys can provide evidence as to consumers’ perceptions of the claims.
The Competition Appeal Tribunal (CAT), a specialist tribunal with the jurisdiction to hear competition damages actions, is becoming more comfortable using survey evidence and accepts that surveys can be useful
