Griffiths v TUI (UK) Ltd – The controversy of uncontroverted.

In what will be a relief to defendants, and particularly tour operators, the decision of the High Court in Griffiths v TUI, that a judge could not reject “uncontroverted” expert evidence, has been reversed by the Court of Appeal.

Background

This case arose out of a claim for gastric illness that was allegedly caused by inadequate food hygiene standards at the defendant’s resort during the claimant’s all-inclusive holiday of 2 August 2014 to 16 August 2014.

The defendant denied that the illness had been caused by consumption of food or drink at the hotel and put the claimant to proof as to when, where and under what circumstances he had fallen ill and as to the means by which any such illness was transmitted to him.

Both parties were given permission to rely upon reports from a gastroenterologist and microbiologist. The claimant relied upon reports from Dr Thomas and Mr Pennington respectively. The defendant stated that they did not intend to rely upon expert evidence from a microbiologist. Their evidence from a gastroenterologist was served late and the court refused to grant relief from sanctions, so they were left without any expert evidence in the case.

The only oral evidence given at trial was from the claimant and his wife. Their evidence, that the claimant had been ill as he had described; that he had eaten and drunk what he had described; and that he had fallen ill on the dates he had specified and had been hospitalised was accepted in full. The illness was also confirmed in the medical records and medical tests which found several pathogens that could have caused the gastroenteritis to be present.

The case therefore turned upon the opinion of Mr Pennington as to causation – that the infection was most likely a bacterial one and that the claimant “acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel.”

The claim was dismissed at trial by Her Honour Judge Truman on 5 September 2019 on the basis that she was not satisfied that the medical evidence showed that on the balance of probabilities the claimant’s illness was caused by contaminated food or drink supplied by the hotel.

On appeal to the High Court, Mr Justice Spencer described the evidence of Mr Pennington (his report and Part 35 answers) as “truly uncontroverted” in that the defendant did not call any evidence to challenge the report;  the claimant’s own evidence, which formed the factual basis of the report, had been accepted by the trial judge and there had been no cross-examination of Mr Pennington.

Crucially, Mr Justice Spencer concluded that “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.”

Having concluded that the report met the requirements of the Practice Direction to Part 35, he concluded that the trial judge was not entitled to reject the report of Mr Pennington on the basis of the criticisms of it (which he accepted were strong) because they went to the issue of weight which the judge should not have been concerned with in an uncontroverted report. He, therefore, allowed the appeal.

The Court of Appeal Decision

The defendant’s appeal of the High Court decision was allowed by a majority decision (2 to 1) of the Court of Appeal so the original judgment of Her Honour Judge Truman stands.

In the leading judgment, Lady Justice Asplin, stated that “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.”

The authorities that had been relied upon, did not consider the case where the expert’s opinion may be unsubstantiated or the reasoning was inadequate or incomplete. The contention that there should be a “bright line” between the court’s approach to controverted and uncontroverted expert evidence was not agreed, instead a more nuanced approach should be adopted, dependent upon the circumstances of the case.

The claimant had also argued that it was unfair to only challenge expert evidence in closing submissions. Asplin LJ disagreed. This key part of her judgment is likely to be relied upon by defendants in many future cases: 

“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. He cannot be prevented from doing so because some of the evidence is contained in an uncontroverted expert’s report. Furthermore, he cannot be required to file his own contrary expert’s evidence in order to enable the court to weigh the evidence. The judge cannot be prevented from considering the quality of such evidence in order to determine whether the burden of proof is satisfied just because it is uncontroverted. As Judge Truman stated, the court is not a rubber stamp. If it were otherwise, the court would be bound by an uncontroverted expert’s report which satisfied CPR PD 35, even if the conclusion was only supported by nonsense.

Furthermore, the expert and the party for whom he or she has been called are not entitled to require the opposing party to give them an opportunity to make good deficiencies in their evidence by seeking permission to pose further questions or by cross-examining the expert witness whose report contains lacunae in the subject matter considered or in the reasoning… It is for the party who files the evidence in support of his case to make sure that all relevant matters are covered and that the content of the report is sufficient to satisfy the burden of proof on the issue to which it is directed.”

It was therefore found that the trial judge was entitled to weigh the expert report, to take into account deficiencies within the report and having found those meant that the claimant had not discharged the burden of proof, it was not for the appeal court to interfere with that evaluation.

Whilst unnecessary to the decision, it is worth noting that Asplin LJ also found for the defendant on the two other points raised in the appeal:

• The report of Mr Pennington did not meet the minimum standards of CPR PD 35 because his Part 35 answer to a question upon the range of opinion “was no answer at all”.

• An expert’s report must provide the basis of the reasoning for the conclusions (this is only specified in respect of the range of opinion in CPR PD 35).

Lord Justice Nugee agreed with the judgment, but Lord Justice Bean gave a dissenting judgment on the point of fairness. In his view, it would be wrong for a party who had the opportunity to challenge evidence in cross-examination (see further below) to choose not to, but then raise challenges in closing submissions. In those circumstances, i.e. those in this case, he considers that a judge would generally be bound to accept uncontroverted expert evidence. He would have dismissed the defendant’s appeal.

Comment

The County Court decision was specific to its own particular facts, which are unlikely arise with any frequency in Multi-Track claims. The High Court decision of the “bright line” between the court’s approach to controverted and uncontroverted expert evidence has, however, had a negative impact in Fast Track claims where causation is disputed, particularly in gastric illness claims.

Claimant firms who were previously content to rely upon reports from GP’s, who are often under qualified to opine upon the issues (and whom defendants were equally content to be the only expert evidence), are now “upgrading” to obtain reports from gastroenterologists and/or microbiologists. In light of the High Court decision, defendants felt compelled to seek permission to obtain their own expert evidence. Initially, this resulted in many claims that could previously have been properly contested on the Fast Track being reallocated to the Multi-Track and the whole situation was serving to significantly increase costs.

More recently, however, there has been a trend for the courts to refuse permission to defendants to obtain their own expert evidence in Fast Track cases (usually on the grounds of proportionality) which, particularly with the High Court judgment in play, has resulted in a very uneven playing field. The reversal of this decision, and the very helpful comments above, is therefore most welcome.

The impact on Fast Track cases was raised before the Court of Appeal and is referenced within the judgment. We do wonder how much this may have influenced the decision. In particular, in his dissenting judgment, Bean LJ noted that cross-examination of experts (when reports are not agreed) is the norm in the Multi-Track but is restricted on the Fast Track. The inference is that he would have allowed the appeal had this been a Fast Track case.

Whilst this decision goes a long way to redress the balance, we believe that the changes in the landscape, which followed the High Court decision, will largely remain in Fast Track claims. Claimants are likely to continue to instruct specialists rather than GPs, and defendants, particularly in light of this decision, are unlikely to be allowed to obtain their own expert evidence to challenge it. The positive, however, is that claims can still be effectively challenged on the Fast Track with claimants limited to Fixed Recoverable costs.

This may, however, not be the final decision. The claimant’s solicitors have stated that they are seeking permission to appeal to the Supreme Court. Given there is a dissenting judgment, there is a possibility that permission may be granted but, for now at least, defendants find themselves in a much better position than they have been following the High Court judgment in this case.