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Griffiths v TUI: Supreme Court Unanimously Allows Appeal
  • Mar 4, 2024
  • Latest Journal

The Supreme Court has handed down its long-awaited judgment in Griffiths v TUI [2023] UKSC 48, an appeal which directly concerns a Package Travel holiday sickness claim but which will also indirectly affect all those who are involved in civil litigation, due to the wide ramifications of the Court’s consideration of the issue of uncontroverted expert evidence. In this article, Peter Hale Barrister at 12 King’s Bench Walk considers the Supreme Court’s decision to overturn the decision of the majority of the Court of Appeal.

Background to the appeal
Mr Griffiths brought a holiday sickness claim against TUI under the Package Travel, Package Holidays and Package Tours Regulations 1992 and in breach of contract, alleging that he was the victim of gastric illness (food poisoning) as a result of consuming contaminated food or drink in the hotel supplied as part of his package holiday.

At trial, Mr Griffiths relied on the expert evidence of a microbiologist (Professor Pennington) in relation to causation, who gave the expert opinion that his illness had been caused by food and drink consumed at the hotel. TUI did not rely on any expert evidence. In the County Court, HHJ Truman held that she was not satisfied that Mr Griffiths’s expert evidence showed that it was more likely than not that his illness had been caused by eating food and drink at the hotel and dismissed the claim.

On appeal to the High Court (Martin Spencer J), the issue was whether HHJ Truman had erred in rejecting Professor Pennington’s expert evidence in the absence of any evidence challenging or contradicting his conclusion. Martin Spencer J described the report as “truly uncontroverted” (ie not challenged by any opposing expert report or other evidence). In allowing Mr Griffiths’s appeal, Martin Spencer J held that “a court would always be entitled to reject a report, even where uncontroverted, which was, literally, a bare ipse dixit” but that the Court is not entitled, where an expert report is uncontroverted, to subject that report to the same kind of analysis and critique as if it was evaluating a controverted or contested report where it had to decide which report to prefer over any expert report or any other controverting evidence.

The Court of Appeal
The majority of the Court of Appeal (Asplin LJ, with whom Nugee LJ agreed) overturned the decision of Martin Spencer J, reinstating the decision of HHJ Truman. Asplin LJ held that she “[did] not consider that there is a strict rule that prevents the court from considering the content of an expert’s report which is CPR-compliant, where it has not been challenged by way of contrary evidence and where there is no cross-examination.”

Asplin LJ concluded that there was “nothing which is inherently unfair in seeking to challenge expert evidence in closing submissions. It may be a high risk strategy to choose neither to adduce contrary evidence nor to seek to cross-examine the expert but there is nothing impermissible about it. […] 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. Furthermore, he cannot be required to file his own contrary expert’s evidence in order to enable the court to weigh the evidence.”

TUI’s closing submissions at trial had been that Professor Pennington’s report was “insufficient to enable Mr Griffiths to prove on the balance of probabilities that his illness had been caused by contaminated food or drink at the hotel. […] it was not being suggested that the report was necessarily wrong in any way – just that it did not enable Mr Griffiths to satisfy the burden of proof as to causation.”

In respect of TUI’s submissions at trial, Asplin LJ held that “As part of a fair trial, it seems to me that it was essential that Judge Truman engaged with those submissions and determined whether causation had been proved to the requisite standard. She did so quite rightly and determined that question on the evidence before her. She had cogent reasons for deciding that the burden of proof in relation to causation had not been satisfied and rejected Professor Pennington’s report accordingly. Her reasoning was set out at [18] – [22] of her judgment. She did not decide that the Professor was wrong, just that his report was insufficient to satisfy the burden in relation to causation. It is not for us, nor was it for the Judge to overturn her evaluative judgment in that regard.”

The Court of Appeal therefore set aside the Order of Martin Spencer J and restored the Order of HHJ Truman. However, a strong dissenting opinion from Bean LJ set the scene for the present appeal. Bean LJ concluded that it was a fundamental part of the English law of evidence that a party was 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.

Bean LJ considered that Martin Spencer J had been wrong to hold that a judge is effectively bound to accept the evidence of an expert if it is not controverted but also considered that a judge was generally bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence and the opposing party could have cross-examined the expert on the point but chose for tactical reasons not to do so. There might be exceptions where there is, for example, an obvious mistake on the face of the report, but this case was not exceptional.

The Supreme Court’s Decision
The Supreme Court has unanimously allowed Mr Griffiths’s appeal, holding that HHJ Truman was wrong to allow TUI to make detailed criticisms of Professor Pennington’s report and to accept those submissions. In doing so, Mr Griffiths had been denied a fair trial of his claim.

Lord Hodge, writing the judgment of the Court, accepted the formulation proposed by Bean LJ of the general rule in civil cases that a party must challenge in cross-examination the evidence of any lay or expert witness of the opposing party on a material point which he or she claims should not be accepted. Lord Hodge explained that the requirement was not a rigid one and provides seven instances in which the requirement may be relaxed. Those are:

1. where the matter challenged is collateral or insignificant

2. where the factual evidence is manifestly incredible

3. where a bold assertion is made in an expert report without any reasoning to support it (“bare ipse dixit”)

4. where there is an obvious mistake on the face of an expert report

5. where the factual evidence is contrary to the factual basis on which an expert premised his or her view

6. where an expert has been given sufficient opportunity to respond to criticism or otherwise clarify the report (eg via Part 35 questions)

7. where there has been a failure to comply with the requirements of CPR Part 35 and Practice Direction 35

In applying those principles (ie in applying the general rule without any of the exceptions), the Supreme Court held that the law of evidence and fairness required that Professor Pennington be given the opportunity to respond to TUI’s criticisms. Having elected not to challenge Professor Pennington in cross-examination or by adducing its own expert report, TUI had precluded itself from raising those criticisms in closing submissions.

The Supreme Court held accordingly that HHJ Truman had denied Mr Griffiths a fair trial. Having set aside HHJ Truman’s order, the Supreme Court considered the issues afresh and concluded, relying on her other findings of fact, that Mr Griffith has established, on the balance of probabilities, that the food and drink at the hotel had caused his gastric illness.

This decision will have profound ramifications for  holiday sickness claims, personal injury and civil litigation generally. This article provides a summary of, the Supreme Court’s decision but this author suspects that there will be considerably more reaction, analysis and commentary on this important topic in future.

This article was first published on 12KBW’s
International and Travel Law blog and is reproduced with the permission of the author.