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Griffiths v TUI UK Ltd [2021] EWCA Civ 1442: was this ‘litigation by ambush’? by Lindsey Hogg (Civil Pupil)

25th November 2021

Griffiths v TUI UK Ltd [2021] EWCA Civ 1442: was this ‘litigation by ambush’? by Lindsey Hogg (Civil Pupil at KBG)

The Claimant relies on expert evidence, the Defendant disagrees with that evidence, but does not instruct their own expert or cross-examine the expert in court.  Can the Defendant criticise that expert in closing submissions?  Is a court bound to accept expert evidence that is uncontroverted?  These are the issues addressed by the Court of Appeal in Griffiths v TUI UK Ltd. 

Facts

The Claimant brought a claim for damages for personal injury, pursuant to the Package Travel, Package Holidays and Package Tours Regulations 1992, as a result of consuming contaminated food or drink when on an all-inclusive holiday in Turkey. 

First instance decision

In advance of trial both parties had been given permission to rely upon expert causation evidence in the field of Microbiology.  The Claimant availed himself of this opportunity but the Defendant declined. The Defendant did submit Part 35 questions to the Claimant’s Microbiologist, but did not apply for the expert to be called in order to be cross-examined at trial. 

At trial, the Defendant argued that the reasoning provided within the expert report was inadequate in a number of respects, concluding that the Court ought not to accept the Claimant’s expert’s conclusion in relation to causation.  HHJ Truman found that the Claimant had been honest and accepted his evidence as to what food he had consumed, but held that the claim failed on causation. 

HHJ Truman held:

“It is trite law that the burden of proof is on the claimant. It is open to a defendant to sit back and do nothing save make submissions, and if the evidence is not sufficient to satisfy a court on the balance of probabilities, a claimant will not succeed. … I accept counsel for the defendant’s submissions that a number of the assertions made are bare ipse dixit. There is sometimes a huge gap in reasoning between undoubted factual matters (such as incubation periods) and the conclusion that the hotel was at fault. The court is not a rubber stamp to just accept what someone has said. When causation is clearly in issue, I do consider it incumbent on the medical experts to provide some reasoning for their conclusions.”

First appeal – High Court

The case was appealed to the High Court who set out a working definition of “uncontroverted” expert evidence [para 10].  Evidence is “uncontroverted” where the opposing party: (1) does not call any evidence to challenge or undermine the factual basis for the report; (2) does not successfully undermine the factual basis for the report through cross-examination of the claimant; and (3) does not cross examine the expert.

The Court held that where some reasoning was provided by the expert and the report met the minimum standards of Part 35, the Court would be bound to accept the conclusions, unless it was controverted.  The appeal succeeded and judgment was entered for Mr Griffiths.

Second appeal – Court of Appeal

The question that was addressed in the Court of Appeal was whether, and if so in what circumstances, the Court can evaluate and reject an “uncontroverted” expert’s report.  The Court concluded that there was no rule which prevented a Court from considering the contents of a Part 35 compliant expert report, even where that report was “uncontroverted”.  In addition, the court held that a party who does not bear a burden of proof is entitled to submit that the case has not been proved to the requisite standard.  There was nothing unfair about seeking to challenge expert evidence in submissions, as long as an expert’s veracity is not challenged. 

Lady Justice Asplin held, [para 40]:

“I should state at the outset, that in my judgment, the authorities do not support the bright line approach adopted by the Judge. There is no rule that an expert's report which is uncontroverted and which complies with CPR PD 35 cannot be impugned in submissions and ultimately rejected by the judge. It all depends upon all of the circumstances of the case, the nature of the report itself and the purpose for which it is being used in the claim.”

Dissenting Judgement – Bean LJ

He agreed with the other judges that the High Court had been wrong to hold that a judge was effectively bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence.  But there was nothing within the authorities, on his review, which provided support for the proposition that a Defendant could criticise reasoning of an expert for the first time in closing submissions without having applied to cross-examine the expert.  He concluded in this judgment at paragraph 99 that “the courts should not allow litigation by ambush.”

Conclusion

This decision reinforces the understanding that the Claimant needs to ensure that expert evidence should meet the requirements of Part 35, but also be sufficiently well-reasoned to satisfy the burden of proof.  An expert will need to demonstrate that they considered other potential causes of the illness and explain why those alternatives were rejected.  If the reasoning is weak in the report, then it is unlikely to hold much weight with the Court.  Whilst a well-reasoned expert report which is uncontroverted is unlikely to be rejected by the Court, the Court of Appeal decision has recognised that Courts will not be bound by an experts opinion.  Furthermore, the Defendant should carefully consider whether it is appropriate to only criticise expert evidence in closing submissions.  Whilst the Court of Appeal have accepted this type of practice, the usual approach would be to ask the expert questions, as well as challenge their evidence by cross-examination in court.   

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Griffiths v TUI UK Ltd [2021] EWCA Civ 1442: was this ‘litigation by ambush’? by Lindsey Hogg (Civil Pupil)