Is the court bound to accept uncontroverted expert evidence: Griffiths v TUI?

In Griffiths v TUI (UK) Ltd[1] (judgment 07.10.21) the Court of Appeal considered the extent to which a court can refuse to accept uncontroverted expert evidence.  Uncontroverted here means “that there is no factual evidence undermining the factual basis of the report, no competing expert evidence and no cross-examination of the expert takes place.[2]  The issue arose in a cross border personal injury claim, but is significant for all civil litigation.

Mr Griffiths went on a package holiday to Turkey.  While there, he developed a gastric illness.  The holiday was bought from TUI and Mr Griffiths sued them under the Package Travel, etc, Regulations 1992.[3]

Permission was given to the claimant to rely on expert evidence from a gastroenterologist and a microbiologist.  The former related just to condition and prognosis, the latter (Professor Pennington) was relied on to establish that the illness was caused by pathogens ingested by the claimant because of the unsatisfactory nature of the food, drink and other services provided by the Turkish hotel, for which TUI would be liable under the 1992 Regulations.  Corresponding permissions were given to the defendant which, however, served no expert evidence.

A brief report from Professor Pennington was served for the claimant.  The substance was 3 paragraphs.  It recited the symptoms and the tests undertaken, noting that there were a number of different pathogens found in stool samples.  Amoebic dysentery was ruled out.  Three other pathogens remained.  Professor Pennington stated: “I consider it to be statistically improbable that he had been infected simultaneously with Giardia, adenovirus and rotavirus. I note that a microscopic diagnosis of Giardia is not straightforward. However it is much more likely as a cause of gastroenteritis in this case then any of the other pathogens.”  There had been 2 separate flare-ups of symptoms and Professor Pennington opined that 2 separate infections could not be ruled out.  He thought a viral cause (adenovirus or rotavirus) unlikely because of lack of vomiting and preferred Giardia as the cause.  He concluded: “On the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel.

Some CPR 35 questions were put to Professor Pennington and answered but he was not required to attend for cross examination.

The trial judge (Her Honour Judge Truman) accepted Mr Griffiths’ factual evidence as to the timing and nature of the symptoms.  She described Professor Pennington’s evidence as minimalist, however.  She noted that he had not given reasons for implicitly excluding the possibility of infection from pre-holiday foods or a meal eaten in Turkey out of the hotel even though the incubation period for Giardia would make them potential culprits.  She pointed out that he did not comment on the alleged breaches of the hygiene procedures at the hotel.  She found the exclusion of the viruses in the sample as potential causes to be unconvincing and concluded that Professor Pennington did not address the possible non-food related methods of transmission of the pathogens identified in the stool sample.  He had also given no “range of opinion” evidence.  On that basis, the judge dismissed the claim.

The first appeal was therefore by the claimant to Martin Spencer J.  He allowed the appeal, holding that the judge could not properly reject uncontroverted expert evidence which complied with CPR 35.

The second appeal was by the defendant to the Court of Appeal which had to determine whether a trial judge is bound to accept uncontroverted expert evidence.  The Court of Appeal allowed the appeal by a 2-1 majority (Asplin LJ and Nugee LJ versus Bean LJ), the majority holding that there was no such rule as Martin Spencer J had sought to articulate and that all depended on the circumstances of the case.

As background to food poisoning cases, Wood v TUI[4] is important.   There, the Court of Appeal pointed out that tummy troubles on holiday could have multiple causes and that it would be far from easy to establish that unsatisfactory food provided by the hotel was the cause.  Sir Brian Leveson P said:

“… it will always be difficult (indeed very difficult) to prove that an illness is a consequence of food or drink which was not of satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded.”[5]

So trial judges in food poisoning cases are right and indeed obliged to scrutinise with care expert evidence seeking to make good that causal link especially where the case is not part of a mass outbreak.

As to what a court will expect of an expert report, in Kennedy v Cordia LLP[6] the Supreme Court stressed the need for the reasoning leading to the conclusion to be clearly set out.

“An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or bare ipse dixit carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40.  If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless.”[7]

Against that background, the majority of the Court of Appeal held that Martin Spencer J in the first appeal erred in stating a rule that an uncontroverted expert opinion complying with CPR PD 35 cannot be impugned in submissions and rejected by the judge.  There is no such rule.  All depends on the circumstances of the case, the nature of the report and the purpose for which it is being used.[8]  Here, there were cogent reasons for the trial judge to conclude Professor Pennington’s report was insufficient to discharge the burden of proof.  Asplin LJ for the majority said:[9]

“… it seems to me that it is clear both from the judgments in Kennedy v Cordia and as a matter of common sense that if the court is to be satisfied as to the conclusion reached, or in a case like this, that the evidence is sufficient to enable the claimant to satisfy the burden of proof in relation to causation, some chain of reasoning supporting the conclusion is necessary, even if it is short.”

Cases which suggested that the evidence of a witness should not be rejected without cross examination related to issues of credibility, where it would be unfair to disbelieve a witness without giving them a chance to respond.  This was a different type of case.

Bean LJ dissented in rather ferocious terms.  He pointed out that Professor Pennington could have been required to attend for cross-examination by the defendant and his evidence challenged in that way.  In the absence of such a challenge, he said, expert evidence which is not controverted by other expert or factual evidence should not be rejected.  “The courts should not allow litigation by ambush.[10]

The case reinforces the message that in food poisoning cases it is never enough to go through the motions of proving the causal link between the illness and the food or service blamed, even when no positive case as to an alternative cause is raised by the defendant.  An expert will need to demonstrate that consideration has been given to other potential causes of the illness and to explain why those alternatives are rejected as improbable.  Where as in Griffiths a variety of pathogens capable of causing illness have been found on testing, the basis for concluding that one is more likely than the others to have caused this particular illness will have to be justified with adequate reasons.  In the preparation of expert evidence, the claimant’s lawyers will have to play the role of opposition, formulating possible criticisms and pointing out lacunae, in helping the expert to formulate their opinions.

Griffiths may lead in the short term to more cases being taken to trial in the hope of persuading a court that some error or omission in the claimant’s expert evidence means that the burden of proof cannot be discharged.  But as Asplin LJ for the majority pointed out, that is a high risk strategy.  Though the majority rejected the proposition that there was any rule of law preventing a judge rejecting uncontroverted expert evidence, most trial judges will in most cases be wary of such an approach, particularly when the defendant could have cross examined the expert and chose not to.   A whiff of trying to game the system will often be fatal.  Still, the majority takes a robust and rather old-fashioned approach, that the defendant does not have to alert the claimant to weaknesses in the claimant’s evidence until final submissions by which time it is too late to rectify.

Bernard Doherty

[1] [2021] EWCA Civ 1442.

[2] [34] of judgment.  The definition was by counsel for the defendant but seems to have been the one used by the court.

[3] The 1992 Regulations have for contracts made from 01.07.18 been superseded by The Package Travel and Linked Travel Arrangements Regulations 2018.

[4] [2017] EWCA Civ 11.

[5] [34].

[6] [2016] UKSC 6.

[7] [48].

[8] [40].

[9] [71].

[10] [99].

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Author: Bernard Doherty

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