Permission to cross-examine medical expert overturned in holiday sickness case

An important recent holiday sickness decision was reported on the Civil Litigation Brief website earlier this month.

Taylor v TUI UK Ltd (Unreported) Newcastle-Upon-Tyne County Court (HHJ Freedman) involved a successful appeal against a case management direction allowing the Defendant tour operator, TUI, to cross-examine the Claimant’s expert at trial.

It is significant not just for holiday sickness litigation, but also for the approach to challenges to expert evidence in Fast Track matters more generally.

This was in effect a standard claim for gastric illness which arose during an all-inclusive package holiday in Sharm El-Sheikh. The Claimant obtained a supportive expert medical report which attributed her illness to contaminated food.

TUI, concerned by the implications of the decision in Griffiths v TUI UK Limited [2020] EWHC 2268 (QB) (about which we previously blogged and which is on its way to the Court of Appeal) applied to cross-examine the medical expert at trial.

That was apparently on the basis of Martin Spencer J indicating at [36] of that decision that this could be a valid way of challenging the report:

Nor did the Defendant seek to challenge the reasoning that might have lain behind Professor Pennington’s conclusions by calling for him to be cross-examined, as it had every right to do.

Decision

However, as HHJ Freedman pointed out in Taylor, it was not actually clear that there was an express power for the court to make such an order:

What I am very clear about is that the application itself was flawed because there is no power conferred by CPR 28.4 which permits the court, on the application by one party, to compel an expert, instructed by the opposing party, to attend at Trial. Nor was the application, in reality, an application that the respondent be asked to be permitted to call the appellant’s expert to give oral evidence at trial. What was being sought was permission to cross-examine the appellant’s expert. Plainly, however, for the respondent to be permitted to cross-examine the appellant’s expert, the order had to direct that the appellant call his expert to give evidence at trial.

Even if it were open to the court to do this, there was no good reason to depart from the default rule that expert evidence in Fast Track trials would generally only be given in written form:

It is not enough in the context of a fast track claim, with a value limited to £3,000, merely to assert that unless a defendant is given the opportunity to try and shake or displace the conclusion reached by an expert instructed on behalf of the claimant the judicial process is somehow rendered unfair.

Something more compelling was needed to take the case out of the norm:

In my judgment there must be something much more specific than that. In other words, if, most exceptionally and unusually, a court is to grant permission for a defendant to be given the opportunity to cross-examine the claimant’s expert in these circumstances, it must be demonstrated that there is some flawed or deficient reasoning within the expert’s report or some factual inaccuracy which needs to be exposed and needs to be clarified before the judge so that the judge can have an opportunity to evaluate the conclusion reached by the expert and reject it, if appropriate.

Comment

The decision in Griffiths prompted a flood of similar applications to cross-examine medical experts in these low-value sickness cases, some of which succeeded, and some of which failed, depending mainly on the court in which they were heard. Many of the applications seem to have been issued automatically by tour operators as a blanket response to the decision.

The problem with adopting a blanket policy is that the value of having the medical expert present at trial depends in every case on what the expert has said in their report and what exactly the challenging party wishes to achieve by having them present at the trial.

To give an example, even if the defendant is (in the words of HHJ Freedman) ‘able to point to some factual inaccuracy which meant that the expert had provided his report upon a false premise’, then the question is whether it would then be strategically prudent to invite the expert to attend the trial to answer questions about it. There is a risk that doing this will give the expert the opportunity to explain away the problem.

On the contrary, if an important factual error remains in the report, then one possible route for a defendant is to say that it falls into a similar category to a report whose factual basis is undermined during cross-examination of the claimant (one of Martin Spencer J’s suggested methods of ‘controverting’ a report).

But, if that kind of argument is to be advanced, then thought will also need to be given to how a judge will respond to a suggestion that the defendant should have explored the deficiency at an earlier stage. This might depend on whether Part 35 questions were asked, and what exactly they said.

The other alternative is for a defendant to try and persuade a judge that they should be entitled to obtain their own report. But, as HHJ Freedman noted, the circumstances in which this will be permissible are likely to be rare:

if they cannot point to an error or deficiency in the expert’s report, then I apprehend that the district judge would be very slow to permit a defendant to obtain an expert report to challenge the conclusions of the original expert.

In those circumstances, would a defendant be better advised to raise a deficiency in advance and seek its own expert evidence (which might give the claimant the opportunity to remedy the position) or to proceed to challenge the report at trial?

There is not one right answer to these questions. That is because they are all essentially questions of tactics and judgement which will depend on the features of the individual case. This perhaps shows why a blanket approach is undesirable in this particular area.

Time will tell how much of an impact this ruling has on how these cases will now be litigated. What is clear is that one of the few options left open by Griffiths to tour operators wishing to defend these claims is closing. In that respect, this ruling represents a clear and valuable win for claimants fighting holiday sickness cases. From the perspective of the tour operators, the pending hearing at the Court of Appeal assumes even greater importance.

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