Griffiths overturned by Court of Appeal majority

In Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, the Court of Appeal has handed down judgment on the question of whether the court can evaluate and reject an “uncontroverted” expert’s report, and if so, in what circumstances.

The background to this holiday sickness case will by now be familiar to travel lawyers: we also previously discussed the practical consequences for litigation of this kind of Martin Spencer J’s judgment below in a previous blog post here.

In this article, Sam Cuthbert summarises and comments on the new approach taken by the Court of Appeal.

Background

In brief, Martin Spencer J’s decision was that the report of Professor Pennington, the Appellant’s expert, was uncontroverted by virtue of the Respondent’s failure to challenge its factual basis and could not therefore be challenged in closing submissions.

At [33] he stated:

what the court is not entitled to do, where an expert report is uncontroverted, is subject the report to the same kind of analysis and critique as if it was evaluating a controverted or contested report where it had to decide the weight of the report in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual 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 if it is to be accepted at all.

TUI appealed.

Court of Appeal

The Appellant submitted that the judge had erred in law in holding that where an expert’s report is “uncontroverted”, the court is not entitled to evaluate the substance of the report and that all the court needs to do is to decide whether it fulfils certain minimum standards (prescribed by CPR PD 35).

Asplin LJ agreed and rejected Martin Spencer J’s “bright line approach”.

At [40] Asplin LJ stated:

There is no rule that an expert’s report which is uncontroverted and which complies with CPR PD 35 cannot be impugned in submissions and ultimately rejected by the judge. It all depends upon all of the circumstances of the case, the nature of the report itself and the purpose for which it is being used in the claim.

She held that a mere assertion by an expert is of so little weight that it is likely to be worthless, and that an expert must explain the basis for his or her conclusion. Asplin LJ outlined that a judge cannot be prevented from considering the quality of expert evidence so as to assess whether the burden of proof is satisfied, solely on the basis that it is uncontroverted.

She went on to comment on the fairness of this at [65]:

I can see 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 fact that TUI decided not to call their own microbiologist having been given permission to do so and failed to serve the report from their gastroenterologist in time or to obtain relief from sanctions, does not alter that. As long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so. The defendant is entitled to submit that the case or an essential aspect of it has not been proved to the requisite standard.

Asplin LJ continued at [78] to state that Judge Truman was:

[…] entitled to conclude that Professor Pennington’s evidence was insufficient to satisfy the burden of proof on Mr Griffiths in relation to causation for the cogent reasons she gave. It is not for this court to interfere, nor was the Judge right to do so.

Asplin LJ was also clear at [70] that, whilst a court can reject a report which is a bare ipse dixit, even if an expert’s opinion is contained in only a few sentences there may be circumstances in which that evidence could be accepted.

She further outlined that whilst CPR PD 35 does not state a requirement for reasons in an expert’s report, some chain of reasoning will be necessary to support the expert’s conclusion in order for a claimant to satisfy the burden of proof.

Nugee LJ gave a short judgment in support of Asplin LJ’s lead judgment. He restated the point made by Asplin LJ that what carries weight is the reasoning of an expert report and not its conclusion.

At [81] he said:

I see nothing in the authorities that suggests that that obligation to assess the evidence falls away if it is “uncontroverted”; uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole. Uncontroverted evidence may be compelling, but it may not be: it may be inherently weak or unhelpful or of little weight for other reasons.

However, Bean LJ dissented from the majority in very strong terms.

As regards the need to cross-examine any opposing party’s witness where one wishes to submit to the court that the evidence should not be accepted, he stated at [87]:

Throughout my 28 years as a practising barrister this proposition would have been regarded as so obvious as not to require the citation of authority. Certainly we were not shown any authority to the contrary. And I agree with Nugee LJ that there is no special rule for experts.

He held that Professor Pennington’s conclusion that “on the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel” could and should have been challenged in cross-examination.

He stated that Martin Spencer J was wrong to find that once a report is truly uncontroverted, that role of the court falls away because to do so would be to delegate the decision making role to the expert. However, where the expert report is both uncontroverted and could have been cross-examined, the judge is generally bound to accept that expert’s evidence.

In his conclusion at [99] he separated himself from the reasoning of his fellow judges in the strongest terms:

Asplin LJ, with whom Nugee LJ agrees, says at [65] that “as long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so”, and that she can see nothing which is inherently unfair in that procedure. With respect, I profoundly disagree. In my view Mr Griffiths did not have a fair trial of his claim. The courts should not allow litigation by ambush. I would therefore have dismissed TUI’s appeal.

Comment

The judgment is of great significance for practitioners in determining their approach to an opposing side’s expert evidence. Uncontroverted evidence can now be challenged in closing submissions, and it will be a matter for the court to determine whether that evidence is accepted and the weight which should be attached to it. Defendants will be emboldened, and may well benefit from the costs saving previously associated with challenging a claimant’s expert evidence.

However, both the majority and the dissent provide compelling arguments. It must be right that it should not be for one party to seek to correct the deficiencies in another party’s evidence. The Claimant must prove its case, and it should not fall to the Defendant to assist them in doing so. However, where criticism of an expert does require a response but the expert has not been afforded the opportunity to provide one, a party’s failure to put those criticisms must surely count against it. It is no surprise then, in light of the compelling arguments on either side, that the Respondent has confirmed it is seeking to appeal the judgment to the Supreme Court.

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