“Demolition of an Uncontroverted Expert Undermines the CPR:” TUI UK Ltd v Griffiths changes the civil litigation landscape
Lord Hodge led the judgment last week in the long-awaited outcome of TUI UK Ltd v Griffiths clarifying the correct approach to ‘uncontroverted’ expert evidence within holiday sickness claims. Mr Griffiths was ultimately victorious, ending ambuscaded criticism of expert evidence in closing submissions which will have an overall impact on the entire civil litigation landscape.
Mr Griffiths purchased an all-inclusive package holiday from TUI to a hotel resort in Turkey in August 2014. While staying at the hotel, Mr Griffiths suffered serious stomach upset which resulted in long term problems, including residual symptoms at trial in September 2019. He alleged that this was because of contaminated food and drink consumed in the hotel and sued TUI.
At first instance
Proceedings were first issued in the County Court. At the trial of first instance, Mr Griffiths presented an expert microbiologist (Professor Pennington) who opined that, on the balance of probabilities, the food or drink served at the hotel was the cause of Mr Griffith’s stomach upset. TUI did not cross-examine the witness and did not present any evidence of its own to challenge the allegation. However, in its closing submissions, TUI’s counsel argued that the deficiencies in the expert’s evidence meant that Mr Griffiths had failed to prove his case on the balance of probabilities.
HHJ Truman agreed with TUI’s submissions and held, “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.”
The judge ultimately dismissed the claim on the basis that Mr Griffiths had not proved his case on causation.
Mr Griffiths appealed to the High Court on the grounds that the court had erred in rejecting the ‘uncontroverted’ expert evidence on causation from Professor Pennington.
In allowing the appeal, Martin Spencer J observed at paragraph 33: “I take the view that a court would always be entitled to reject a report, even where uncontroverted, which was, literally, a bare ipse dixit… However what the court is not entitled to do, where an expert report is uncontroverted, is subject the report to the same kind of analysis and critique as if it was evaluating a controverted or contested report, where it had to decide the weight of the report in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual evidence. Once a report is truly uncontroverted, that role of the court falls away. All the court needs to do is decide whether the report fulfils certain minimum standards which any expert report must satisfy if it is to be accepted at all.”
The judge held that HHJ Truman was not permitted to reject the evidence of Professor Pennington for the reasons that she did. Although the report itself was criticised, the weight to be ascribed to the report was the key issue to consider. The appeal was allowed, and judgment was entered for Mr Griffiths.
Court of Appeal
The case came before Bean LJ, Asplin LJ, and Nugee LJ. The court were split in a 2-1 majority of allowing the appeal, finding in TUI’s favour.
The Court held that the authorities did not support the “bright line approach” taken by Martin Spencer J and there was no strict rule that uncontroverted evidence must be accepted prima facie. Although, if unchallenged expert evidence is to be rejected, then it must be rejected for a reason.
The Court held that there is nothing unfair in challenging an expert’s evidence in closing submissions, even if contrary evidence was not adduced and the expert was not cross-examined, so long as the expert’s veracity was not challenged. Asplin LJ held: “The defendant is entitled to submit that the case or an essential aspect of it has not been proved to the requisite standard. He cannot be prevented from doing so because some of the evidence is contained in an uncontroverted expert's report.” As a result, the appeal was allowed.
In his dissenting judgement, Bean LJ considered that Mr Griffiths did not have a fair trial because of “litigation by ambush.” Although he agreed that judges are not bound to accept evidence on the basis that it is uncontroverted, he considered that a judge is bound to accept evidence if it is uncontroverted and the opposing party could have cross-examined the expert but chose tactically not to do so.
Bean LJ observed at paragraph 98: “Mr Griffiths must be wondering what he did wrong. He instructed a leading firm of personal injury solicitors, who in turn instructed an eminent microbiologist whose integrity has not been questioned. Mr Griffiths and his wife gave evidence at the trial, were cross-examined, and were found by the judge to be entirely honest witnesses. The eminent expert gave his opinion that on the balance of probabilities Mr Griffiths’ illness was caused by the consumption of contaminated food or fluid supplied by the hotel. No contrary evidence was disclosed or called, and the expert was not cross-examined. Yet the Claimant lost his case.”
Mr Griffiths appealed to the Supreme Court.
The Supreme Court unanimously found for Mr Griffiths.
The key questions for this court were:
- What is the scope of the rule, based on fairness, that a party should challenge by cross-examination evidence that it wishes to impugn in submissions at the end of the trial?
- In particular, does the rule extend to attacks in submissions on the reliability of a witnesses’ recollection and on the reasoning of an expert witness?
- If the rule does so extend, was there unfairness in the way in which the Court conducted the trial in this case?
The Court upheld the general rule in civil cases in that a party must challenge the evidence of the opposition on a material point that he or she claims must not be accepted by the trial judge, including both witnesses of fact and expert witnesses. This is predicated on an adversarial system to ensure fairness to both parties, all witnesses, and the court. It also allows witnesses the opportunity to explain or clarify the evidence, or defend their professional reputation if challenged, so a trial judge can make a proper assessment of the evidence in the case.
However, this requirement is not a rigid one, and turns on the circumstances of each case, considering whether the trial is fair. The Court gave seven instances where the rule may be relaxed, such as when the challenge is to a collateral or insignificant matter, or where the evidence is so manifestly unbelievable that an opportunity to explain in cross-examination would make no difference, or where an expert witness has been provided sufficient opportunity to respond to criticism other than within cross-examination (e.g. through CPR PD 35) and the expert witness fails to answer satisfactorily.
The Court then considered whether fairness existed in the case at hand. TUI chose not to challenge Professor Pennington’s report within cross-examination, nor lodge its own expert report. Its Part 35 questions did not focus on the matters which it later criticised. Although the report could have included more reasoning, it was not a bare assertion. It therefore could not fall into any of the seven exceptions, and in accepting the criticisms of the report, the trial judge had denied Mr Griffiths a fair trial. Finally, the Court accepted that Mr Griffiths had established that it was more likely than not that the food and drink at the hotel had caused his stomach upset.
The key consideration in this case was the importance of a fair trial; ultimately that is at the heart of the justice system. The Griffiths case ends untested criticisms of expert reports through closing submissions and makes clear that there are limited exceptions where a party can criticise the opposition’s expert evidence. This will likely lead to more focused Part 35 questions in the future (and perhaps more applications for further expert evidence) affecting not only the travel sphere but the entire personal injury landscape and beyond, wherever expert evidence is properly utilised. Additionally, the case provides clear tramlines as to when cross-examination is not required, assuring trial advocates that if a critique is well-founded, it can be safely relied on at trial.