Uncontroverted Expert Evidence – a Promising Decision for Defendants

A recent Court of Appeal judgment on a holiday sickness claim has provided some clarity regarding the proper approach towards uncontroverted expert evidence. In Griffiths v TUI UK Limited [2021] EWCA Civ 1442 the Court of Appeal found that it is open to a court to evaluate and reject expert evidence which is not disputed by the other party. A strong dissent from Bean LJ means, however, that although permission to appeal to the Supreme Court was refused by the Court of Appeal, it is likely that a request will be made to the higher court and that permission may well be granted.

Background

Whilst on an all-inclusive holiday in Turkey, the claimant became unwell. Following an admission to hospital, he was diagnosed with acute gastroenteritis. The claimant had eaten all meals at his hotel apart from one meal at the airport and one meal in a neighbouring town.

The claimant issued proceedings against the defendant travel company and liability was denied. The claimant obtained expert evidence from a consultant microbiologist, Professor Pennington, which was “minimalist” but concluded that on balance, the claimant had developed his gastric illness because of contaminated food or fluid from the hotel at which he was staying. The defendant had permission to obtain a report from a gastroenterologist and a consultant microbiologist but failed to serve either report in time. The defendant made an unsuccessful application for relief from sanctions and, as such, had no expert evidence to adduce at trial. Professor Pennington was not called, or cross examined at trial.

At first instance, it was accepted that the claimant and his wife were giving a true account of what he had eaten and the history of his symptoms. However, the court considered that there were shortfalls within the evidence relied upon by the claimant, despite there being no expert evidence to challenge it. The court held that the claimant had to satisfy the test in Wood v Tui Travel Plc [2018] QB 927 and show that his illness was due to contamination of the food or drink that he had consumed at the hotel. The report was rejected, and the claim dismissed.

The claimant appealed. Allowing the appeal, the High Court found that the report substantially complied with the Practice Direction to CPR Part 35 and that the court was not entitled to reject its conclusions as the evidence passed the threshold for acceptance. It was held that where evidence is uncontroverted, the court is not entitled to critique the report in the same way as if it were contested. The travel company appealed to the Court of Appeal.

Court of Appeal Judgment

The Court of Appeal allowed the appeal. The majority considered that there was no rule that an uncontroverted CPR compliant expert’s report could not be impugned in submissions and rejected by the court. They found that the trial judge had not considered Professor Pennington’s report to be wrong, but that it had been insufficient to satisfy the burden of proof in relation to causation. Although it is a risky strategy not to present evidence or seek to cross-examine an expert, it was not unreasonable to seek to challenge the evidence in closing submissions. It was not for the opposing party to make good deficiencies in the claimant’s evidence.

Bean LJ strongly dissented. He accepted that it was wrong to hold that a court was bound to accept uncontroverted expert evidence, however, he considered that it was wrong for a party to withhold its criticisms until closing submissions, liking it to litigation by ambush and stating that he considered that the claimant did not have a fair trial.

Conclusions

This judgment is a promising result for defendants as it allows them to criticise expert evidence in submissions without controverting the evidence first. That said, this could be an extremely risky tactic and it seems unlikely that it would be recommended in practice, particularly in high value cases. It would take a poor and inadequate report to persuade a court that the evidence is so insufficient that it should not be accepted. Defendants should be encouraged to consider the arsenal in their chest to ensure that they offer a strong opposition and an alternative for the court to consider.

A request for permission to appeal to the Supreme Court (although rejected by the Court of Appeal) is almost inevitable considering Bean LJ’s comments regarding the claimant not having a fair trial. Travel companies and their insurers should watch this space.

Further reading: Griffiths v TUI UK Limited [2021] EWCA Civ 1442