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Rory Holmes’ observations on the recent COA judgment in Griffiths v TUI

The Court of Appeal decision in Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442 raises the question of whether and if so, in what circumstances, the court can evaluate and reject what is described as an “uncontroverted” expert’s report.

Facts

The Claimant suffered severe gastric illness whilst on an all-inclusive holiday in Turkey in 2014. He alleged that he had contracted his illness because of the consumption of contaminated food and/or fluid at his hotel. He therefore brought a claim in breach of contract against the package holiday provider.

First instance decision – the County Court

Both parties had been given permission to rely upon microbiology evidence as to causation. Yet only the Claimant served expert evidence, in the form of a supportive report from Professor Pennington, a microbiologist. The Defendant raised some Part 35 questions of Professor Pennington, which were answered, but did not require him to be called for the purpose of cross examination at Trial.

At Trial HHJ Truman found the Claimant to be an entirely honest witness and accepted his evidence as to what food he had consumed and when. Yet the claim failed on causation.

During submissions, the Defendant argued that the reasoning within Professor Pennington’s report fell short in a number of respects, all of which in totality meant that the Court ought not to accept Professor Pennington’s conclusion on causation. HHJ Truman agreed. Although causation was in issue on the pleadings, and some alternative methods of transmission of illness had been foreshadowed in the Defence, it was only at Trial that the criticisms of Professor Pennington’s reasoning were set out by the Defendant.

First appeal – the High Court

The Court readily accepted that the report of Professor Pennington was short (“minimalist”). Moreover, it accepted that the criticisms levelled by the defendant as to the paucity of reasoning were, on their face, “strong”. However, the appeal succeeded. Judgment was entered for Mr Griffiths.

The Court started with 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, for example by calling witnesses of fact or putting in documentary evidence; (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.

This was therefore a case of “uncontroverted” expert evidence. So, in what circumstances could the Court reject such evidence? Mr Justice Martin Spencer concluded [para 33] that a court could do so only when the report was bare ipse dixit, for example if Professor Pennington had produced a one sentence report which simply stated: “in my opinion, on the balance of probabilities, C acquired his illness following ingestion of food or fluid at the hotel.” However, where some reasoning was provided, and the report met the minimum standards of Part 35, the Court would be bound to accept the conclusions, unless it was controverted.

Second appeal – the Court of Appeal

Asplin LJ and Nugee LJ rejected the “bright line” approach adopted by the Court below.

Following review of the authorities, they concluded that there was no strict rule which prevented a Court from considering the contents of a Part 35 compliant expert report, even where that report was “uncontroverted”. There was nothing unfair about seeking to challenge expert evidence in submissions. An opposing party, which does not bear a burden of proof, is entitled to submit that the case or an essential feature of it has not been proved to the requisite standard. The Court is not a rubber stamp; if it were otherwise then the Court would be bound by a Part 35 compliant uncontroverted expert’s report, even if the conclusion were based upon nonsense reasoning. The Defendant in this case did not have to give the Claimant opportunity to make good deficiencies in their evidence by cross-examining. It would be different if the Defendant were suggesting that the witness (expert or lay) was being untruthful; but that was not the case here. The Defendant’s strategy of choosing neither to adduce contrary evidence, or seek to cross-examine, could be seen to be “high risk”, but it was not impermissible [paras 54-72].

However, Bean LJ gave a dissenting judgment.

He concluded that a Judge is generally bound to accept the evidence of an “uncontroverted” Part 35 expert report, where the opposing party chose not to cross examine for tactical reasons.  Here the Defendant had the opportunity to challenge this evidence, either by adducing competing evidence, or by calling Professor Pennington to be cross examined, but had chosen not to do so. There was nothing within the authorities, on his review, which provided support for the proposition that a defendant could seek to dismantle reasoning of an expert for the first time in closing submissions without having applied to cross-examine the expert. He concluded his judgment with the following: “The Courts should not allow litigation by ambush” [para 86-99].

Observations

“As with judicial or other opinions, what carries weight is the reasoning, not the conclusion”: as per Lord Prosser in Dingley v Chief Constable 1998 SC 548,604.

The significance of this judgment extends beyond the holiday sickness cases. It is key reading for PI practitioners.

One can of course understand why a party who does not bear a burden would choose to attack the reasoning of an opposing expert during submissions, rather than require that expert to cross examine. It means there is no possibility of that opposing expert filling the gaps in answers to cross examination. If you don’t ask the question, there is no chance of getting an unfavourable answer. Moreover, in light of the QOCS regime, there is frequently no realistic prospect of costs enforcement. Therefore a defendant will wish to avoid the expense of expert(s) at Trial if that is practicable.

Vision in hindsight is always 20/20. No doubt if Mr Griffiths’ representatives had foreseen that these points would be taken at Trial, an addendum report would have been served. One gets the sense that the Claimant would have succeeded if Professor Pennington had been given a second bite of the cherry.

There can obviously be reasonable disagreement about whether the Defendant played its cards well, or whether it ambushed the Claimant. A practitioner’s view of that question may be influenced by their area of practice, and whom they usually represent. The Defendant’s approach was certainly “high risk”, and it seems to have paid off.

What is striking, however, is that this single procedural issue can produce such disagreement between the five Judges who have dealt with this case so far. There appears to be some consensus on legal Twitter (never wrong, of course) that this case is bound for the Supreme Court, given the dissenting judgment of Bean LJ. That may well be so, although as other commentators have observed, the Supreme Court have recently expressed reservations about whether they are best suited to resolve purely procedural disputes: see para 9 in Ho v Adelekun [2021], the recent appeal concerning off-setting of QOCS.

Rory Holmes

12 October 2021



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