Lessons in expert evidence: the curious case of Griffiths v TUI
In its judgment in Griffiths v TUI (UK) Ltd  EWCA Civ 1442, the Court of Appeal allowed an appeal by the travel agency TUI against a High Court decision that the County Court should not have rejected uncontroverted expert evidence. In deciding this case the Court of Appeal has considered how to approach so-called “uncontroverted” expert evidence and what that means for burden of proof at trial, thereby providing guidance as to the extent of the courts’ discretion to assess and value stand-alone expert evidence in a historically adversarial legal system.
The case related to a personal injury claim, which arose as a result of the claimant, Mr Griffiths, falling ill during his package holiday in an all-inclusive hotel in Turkey. At trial in the County Court, Mr Griffiths served a report from a consultant microbiologist dealing with causation, which (while rather short) concluded that, “on the balance of probabilities”, Mr Griffiths had contracted his gastric illness following consumption of contaminated food or fluid from the hotel. TUI was granted permission to obtain expert evidence, but it failed to do so by the relevant deadline. Mr Griffiths’ expert was neither called nor cross-examined, but in closing submissions the defendant challenged the evidential value of the report.
The County Court found that, taking into consideration the expert report together with the expert’s response to further questions on causation which had been put to him by TUI under CPR 35.6, Mr Griffiths had not proved his claim. This was on the basis that the expert report and the responses contained a number of deficiencies. The County Court noted that “[t]here is sometimes a huge gap in reasoning between undoubted factual matters (…) and the conclusion that the hotel was at fault. The Court is not a rubber stamp to just accept what someone has said.” As the burden of proof fell on the claimant it was “open to a Defendant to sit back and do nothing save make submissions, and if the evidence is not sufficient to satisfy a court on the balance of probabilities, a Claimant will not succeed”.
Mr Griffiths appealed and the High Court then overturned the County Court’s decision. The High Court recognised that a judge would always be entitled to reject even an uncontroverted report if such report was, literally, “a bare ipse dixit”, in other words an individual’s own opinion or assertion without reliance on any authority or proof. However, he went on to say that: “[W]hat 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 (…). 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 then appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal overturned the High Court’s decision, finding by majority in favour of TUI. Asplin LJ (supported by Nugee LJ) pointed out that there was no “bright line” supported by authorities, nor was there any rule that an uncontroverted expert report which complies with CPR PD 35 cannot be challenged in submissions and ultimately rejected by a judge. Rather, the court should have regard to the circumstances of the case, the nature of the report itself and the purpose for which it is being used in the claim. On the one hand, where there was expert evidence which was within the domain of scientific expertise and no challenge was made to it, and there was no rational or proper basis for departing from it, Asplin LJ found it was hard to envisage circumstances in which it would be appropriate for a judge to do so. On the other hand, there was no rule that uncontroverted evidence had to be accepted at face value whatever it said.
Further, the Court of Appeal found that there was nothing “inherently unfair” in seeking to challenge expert evidence in closing submissions. Provided that the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions and it is entitled to submit that the case, or an essential aspect of it, had not been proved to the requisite standard. Importantly, a defendant could not be prevented from challenging a claimant’s case because some of the evidence was contained in an uncontroverted expert report.
This decision shows the difficulty of finding the right balance between the traditional court approach to expert evidence in the adversarial English legal system (where there is no court-appointed expert) and the right for judges to reject obviously faulty expert evidence even if no contrary expert evidence has been provided. In his dissenting opinion in this case, Bean LJ observed that: “Mr Griffiths must be wondering what he did wrong. He instructed a leading firm of personal injury solicitors, who in turn instructed an eminent microbiologist whose integrity has not been questioned…The eminent expert gave his opinion that on the balance of probabilities Mr Griffiths’ illness was caused by the consumption of contaminated food or fluid supplied by the hotel. No contrary evidence was disclosed or called, and the expert was not cross-examined. Yet the Claimant lost his case.” This decision is probably best viewed as an unusual example of a situation where the expert evidence had particular deficiencies and it is certainly not expected that rejection of uncontested expert evidence will be the usual course of events. The judgment is an important reminder that the strength of expert evidence should be assessed early in the case and that expert selection remains critical.