The County Court as rubber stamp?
In this article on TUI UK Ltd v Griffiths [2023] UKSC 48, junior tenant William Lacey introduces the factual background, the trial and the appeals; experienced personal injury practitioner Helen Pagett then considers the likely impact of the judgment, especially as regards civil litigation in the County Court.
On 29th November 2023 the Supreme Court handed down an important judgment which is likely to have far-reaching consequences for civil litigation: perhaps more far-reaching than Their Lordships intended.
Griffiths v TUI UK Ltd [2023] UKSC 48 is a personal injury claim worth around £30,000 which led to three appeals. The Supreme Court overturned the Court of Appeal, which overturned the High Court, which overturned the County Court.
The unanimous Supreme Court panel and the High Court Judge took a highly principled approach; whereas the Court of Appeal majority and the Circuit Judge took a pragmatic approach which arguably reflects the reality of civil litigation in the courts of England and Wales, particularly at the lower-value end of the system.
Background
Having bought a package holiday from TUI, Mr Griffiths and his family spent two weeks in Turkey in August 2014. Mr Griffiths became ill with diarrhoea and stomach cramps, and ended up in Kusadasi Hospital with a diagnosis of acute gastroenteritis.
Proceedings were issued almost three years later, alleging that the claimant’s illness was caused by poor hygiene standards at the hotel in Turkey. Reference was made to inadequate food, dirty cutlery, offensive-smelling toilets and a dirty swimming pool.
TUI’s defence denied the claims and put Mr Griffiths to proof. The claim was allocated to the multi-track.
Birmingham County Court (2019)
HHJ Truman accepted the evidence of Mr Griffiths and his wife concerning what he had eaten and drunk whilst on holiday, when he had fallen ill, and what his symptoms had been. But the claim failed on the issue of causation.
The only evidence on causation was the claimant’s expert microbiology report, written by Professor Hugh Pennington. The judge described the report as “minimalist”. It was four paragraphs long, arriving swiftly at the following conclusion:
“On the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel.”
TUI failed to serve competing expert evidence, although it had permission to do so. It posed Part 35 questions to Professor Pennington, but his answers were as minimalist as the report itself. Importantly for present purposes, TUI did not require the professor to attend trial for cross-examination.
In the circumstances, the judge was not satisfied that she was bound to accept the expert’s conclusion: “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.” The judge found that the claimant had not proven his case to the required standard, and dismissed the claim.
High Court Appeal Centre Birmingham (2020)
The central question on the first appeal was framed as follows: is the court bound to accept uncontroverted expert evidence?
Mr Justice Martin Spencer ruled that it is, unless the expert report is a bare ipse dixit. An expert report consisting of one sentence would be a bare ipse dixit, and the court would not be bound to accept it.
But if an expert report is uncontroverted, the court is not entitled to subject the report to detailed analysis, as if it were evaluating a controverted report and deciding how much weight to give to it in relation to competing 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.
Professor Pennington’s report was not a bare ipse dixit, and it complied with CPR 35 and its Practice Direction. The judge below was bound to accept it. Accordingly, Mr Griffiths’ appeal was allowed.
The Court of Appeal (2021)
Asplin LJ was troubled by Martin Spencer J’s conclusion, stating that his “bright line approach” is not supported by the authorities. There is no rule that an uncontroverted (and CPR-compliant) expert report cannot be challenged in submissions and ultimately rejected by the judge. It all depends on the circumstances of the case, the nature of the report and the purpose for which it is being used.
Her Ladyship agreed with HHJ Truman that the court is not a rubber stamp, and is entitled to identify deficiencies in an expert report. The claimant must satisfy the burden of proof in relation to causation, and the court must be satisfied that the evidence is sufficient. The expert’s conclusion needs to be supported by some “chain of reasoning”, even if it is short.
Nugee LJ agreed with Asplin LJ. Although TUI had neither called expert evidence of its own, nor required Professor Pennington to attend for cross-examination, TUI’s counsel was not precluded from submitting that the reasoning in his report was inadequate. HHJ Truman was not only entitled but right to examine that reasoning to decide what weight to give to his opinion, and whether the case had been proved.
Bean LJ dissented vehemently, referring to his 28 years as a practising barrister. His Lordship approved a passage from the practitioner textbook Phipson on Evidence:
“In general, a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases . . . In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”
Bean LJ considered that Mr Griffiths’ claim did not receive a fair trial: the courts should not allow litigation by ambush.
The Supreme Court (2023)
Lord Hodge, with whom Lords Lloyd-Jones, Briggs, Burrows and Stephens agreed, approved Bean LJ’s approval of the paragraph from Phipson on Evidence quoted above. Lord Hodge was satisfied that the statement correctly summarises a longstanding rule of general application (“the rule”), adding that it is a matter not only of extensive legal precedents, but also of the fairness of the proceedings as a whole.
Lord Hodge stated that the rule is of great antiquity, referring to authorities from 1820 and 1893, and to the fact that two leading textbooks have contained the rule since 1970. His Lordship did not address whether Phipson is correct in asserting that the rule has not in general been altered by the Civil Procedure Rules 1998; but he did accept that there are seven circumstances in which the rule does not apply with its full rigour:
- First, where the matter challenged is collateral or insignificant.
- Second, where the evidence of fact is manifestly incredible.
- Third, where there is a bold assertion of unsupported opinion, i.e. a bare ipse dixit.
- Fourth, where an expert report contains an obvious mistake.
- Fifth, where factual witness evidence and expert witness evidence conflict with each other.
- Sixth, where an expert has had sufficient opportunity to respond to criticism (e.g. by means of written questions and answers).
- Seventh, where CPR PD 35 has not been complied with, although His Lordship recommended that parties should seek directions from the trial judge before attempting to rely on this exception.
A possible eighth exception was not included: where the claim is low-value, and it would be disproportionate and/or unfair and/or contrary to the overriding objective to enforce the rule in its traditional form. His Lordship briefly addressed this issue at the end of the judgment, suggesting that a defendant can ask focused CPR Pt 35.6 [i.e. written] questions, thereby avoiding the need to seek the expert’s attendance at trial for cross-examination.
The law applicable to claims of all sizes now appears to be that where a party wishes to take issue with the plausible conclusion(s) of a CPR-compliant expert report, that party must put the other side on notice of their intention, and (i) produce controverting evidence, and/or (ii) require the expert to attend trial for cross-examination, and/or (iii) put their case to the expert in written form. If that party fails to do so, then the judge is effectively bound to accept the expert’s conclusion and give judgment accordingly.
Commentary
Most holiday sickness claims are defined as “low-value”, conducted by way of the Pre-Action Protocol for Resolution of Package Travel Claims, and allocated to the fast track if not settled. Nonetheless, the issue of the consequences for such claims (and other low-value claims) is limited to the third to last paragraph of the judgment.
The Supreme Court appeared confident that in “most” cases of modest value, where a claimant relied on an inadequately reasoned expert report, their judgment would not lead to a defendant “inevitably” having to obtain their own expert evidence or call the claimant to attend for cross-examination. Defendants are advised to ask “focused” Part 35 questions which clearly articulate the challenge(s) they wish to make, and give the expert the opportunity to explain their evidence in response; if this is done, it will “obviate” the need for the expert to attend trial. Earlier in the judgment, the Court advises parties that if they wish to argue that a report does not comply with the requirements of CPR PD 35 (with the result that the expert does not need to be cross-examined), they should seek the directions of the trial judge.
All of this will probably sound very sensible to practitioners defending multi-track claims, who (like TUI) will usually have permission to produce their own expert evidence in some or all disciplines for which the claimant has permission. There will almost always be a Pre-Trial Review, where parties can raise any alleged non-compliance with CPR PD 35. (On a practical note, practitioners attending PTRs in the coming weeks and months may find themselves being questioned by judges about any challenges that are going to be raised regarding apparently uncontroverted expert evidence.)
Practitioners involved in lower value fast track claims (or small claims) might be forgiven for wondering whether Their Lordships should have made a site visit to a local County Court during the appeal, preferably on a day with a “floating” fast track list. This might have dented the panel’s confidence that the decision will not have adverse consequences for these types of claims. What was considered “ambush” in a multi-track trial (where TUI had permission for its own expert evidence, but chose not to rely on it) would probably be considered fairly normal submissions in a fast track personal injury claim, coming from Counsel who probably received papers less than 48 hours before trial, and against the backdrop of a fixed costs regime with proportionality at its heart.
Since the costs reforms of 2013, more and more low-value claims have come within fixed costs regimes; and the scope of fixed costs expanded dramatically in October 2023 with the introduction of a new intermediate track. CPR 45 provides prescriptive rules on the categories and amounts of permissible costs.
Although CPR 26.9(6) provides that, among other factors, the fast track will be the normal track for a claim if oral expert evidence will be limited to one expert per party in relation to any field, almost all County Court standard fast track directions allow for the claimant to instruct one or more experts, but not the defendant. Applications for defendants to have their own expert evidence are usually an uphill battle, often dismissed with a judicial remark that criticisms of an expert report could be “raised in submissions”.
Even where permission is granted for one or more experts, CPR 35.5(2) makes clear that, on the small claims track or the fast track, the court will not direct an expert to attend trial “unless it is necessary to do so in the interest of justice”. According to the White Book commentary, “the parties will be expected to make out a strong case for requiring oral expert evidence.” This will usually require an application: and such an application will usually lead to courts considering the need to transfer to the multi-track (or in the future, to the intermediate track), because of concerns that the matter will not be concluded in one day and is thus not suitable for the fast track.
There are many proponents of fixed-cost regimes; however, few of them would argue that such regimes have led to an improvement in the quality of expert reports. Returning to the hypothetical site visit, one wonders how many of the claims on the “floating list” would be considered by the Supreme Court to be supported by “adequately reasoned” expert reports. Yet given Their Lordships showed some sympathy for Professor Pennington’s lack of reasoning in his report, suggesting that the relatively low value may have led him to think his reasoning was implicit, they might be even more forgiving of the failures of a report relating to a low-value soft tissue RTA injury claim, where the expert has been paid £180.
Defendants, who are often confronted with such reports, face a dilemma: should they ask questions pursuant to CPR 35? Or will that simply give the claimant a second chance to get their house in order? If defendants do not ask questions, they run the risk that the judge (usually a District Judge) hearing the matter will meet any criticism of the report with, “why didn’t you raise this in questions to the expert?”
Lord Hodge briefly addressed these concerns at paragraph 81 of his judgment. He stated that, where it would be disproportionate for the defendant to serve competing expert evidence and require the claimant’s expert to attend trial for cross-examination, then defendants should effectively conduct a “cross-examination by post” and put their case to the expert in writing:
“A defendant can ask focused CPR Pt 35.6 questions which articulate clearly the challenge or challenges on [sic] which the defendant wishes to make and give the expert the opportunity to explain his or her evidence in response to those challenges, thereby obviating the need to seek the expert’s attendance for cross-examination.”
This guidance raises a number of issues for practitioners. These include:
- It is unclear how the suggested procedure is intended to be compatible with the new fixed costs regime under CPR 45. Questions may be asked, and in whiplash claims £80 is allowed for the expert’s response. But additional sums for drafting the questions are not provided for. And there is considerable ambiguity as to how experts’ replies are to be funded. There is provision for expert attendance at trial, but no specific provision for joint meetings. Although certain sections contain provision for disbursements reasonably incurred, they do not contain provision for additional associated profit costs.
- The guidance sits awkwardly with CPR 35.6(2)(c), which provides that written questions to experts “must be for the purpose only of clarification of the report” unless the court gives permission or the other party agrees. The White Book commentary to the rule suggests that cross-examination must not be conducted by post. Most practitioners in low-value claims will have received short one-word responses to extensive Part 35 questions, with courts often supporting such an approach, and criticising defendants for trying to cross-examine the expert in writing. Claimants face a risk that such responses will now lead to the court finding, as per the “sixth exception” in the Supreme Court’s judgment, that an expert has been given sufficient opportunity to explain their report and has failed to do so.
- CPR 35.6 is disapplied on the small claims track, although expert reports are permissible.
So, what are the possible consequences of this judgment for low-value claims? Will we see District Judges rubber-stamping claimants’ expert reports, or has the Supreme Court left them enough wiggle room? Should claimants be celebrating, and defendants lamenting and getting their chequebooks out?
First, the Supreme Court (briefly) considered requests by defendants for their own expert evidence. Whilst there may be an increase in these applications, practitioners will still likely find District Judges reminding them of Lord Hodge’s words that it is not “inevitable” that defendants will need their own evidence. But claimants should be concerned that, where defendants previously may not have raised Part 35 questions, they now may do so; and this may elicit concessions by the expert, including concessions that there is a range of opinions, some of which would be fatal to the claim. Even in fixed costs matters, a court faced with such a report may feel that the only way to ensure fairness is to allow the defendant to have their own expert, which will increase costs, but with no further recovery under the fixed costs rules. Whilst insurers might be happy to pay for these questions, claimants, predominately on CFAs, will have to stretch any recoverable fixed costs further.
Secondly, as mentioned above, defendants may become keener to ask Part 35 questions (and to involve trial counsel in their drafting). If such questions are asked, there is a significant risk that they will simply help to get the report into better shape ahead of trial. If such questions are not asked, there is a significant risk that a trial judge will find the expert evidence is uncontroverted, and can no longer be challenged.
Thirdly, there is no doubt that there will be significant consequences for submissions at the end of fast track trials (much to the delight of District Judges trying to get through a fast track day at the County Court, and of other Counsel and witnesses sitting in the waiting room on a floating list). Claimants will argue that a report cannot be challenged, because the expert has not been given the chance to respond. Defendants will argue that the report can be challenged, because it comes within one of the seven exceptions highlighted by the Supreme Court. These competing submissions inevitably mean that District Judges will not be obliged simply to rubber stamp expert reports, and will find sufficient wiggle room to ensure a just outcome in the particular circumstances of each case.
Finally, in relation to the Supreme Court’s guidance that parties should raise the issue of non-compliance with CPR PD 35 and seek directions from a trial judge, let us return to the hypothetical site visit. It is 2pm, and a low-value RTA whiplash claim is called before a District Judge who spent the morning deal with another case. We envisage that a request for directions in respect of an expert report’s alleged non-compliance with CPR PD 35 is likely to result in only one judicial response: “Let’s get on with the trial; you can deal with that in submissions”.
