Today, the Supreme Court handed down their judgment in the long-running case of Griffiths, in which Mr Griffiths was somewhat unsurprisingly victorious. This is a judgment that is not only of importance to travel lawyers, but to all those working across the personal injury sphere. Griffiths has far reaching consequences, in that it marks the end of ambushes of alleged deficiencies in expert evidence by way of submissions at the end of a trial, which will undoubtedly change the way in which defendants (and claimants) approach low-to-modest value personal injury cases.
The Claimant booked an all-inclusive package holiday with the Defendant to Turkey for himself and his family from 2 August 2014 to 16 August 2014. He became unwell during the holiday, with symptoms of gastric illness beginning on the evening of 4 August 2014. He was later admitted to hospital and diagnosed with acute gastroenteritis. A stool sample was taken, which showed the presence of both parasitic and viral pathogens.
The Claimant subsequently issued proceedings against TUI. However, liability was firmly denied. It is of note that TUI was granted permission to obtain a report from a consultant microbiologist and a gastroenterologist yet failed to serve either report on time. Following an unsuccessful application for relief from sanctions and to adduce gastroenterological evidence, TUI were left with no expert evidence for the purposes of the trial.
The trial initially came before Judge Truman, who accepted the Claimant's evidence. She found the following:
- he had been ill as he described;
- he ate and drank what he described;
- he fell ill on the dates he specified and had been hospitalised.
The Claimant relied upon a report from Professor Pennington, a microbiologist, in respect of causation. Professor Pennington also answered Part 35 questions posed by the Defendant. His report was described by the Judge as “minimalist”, but he was not called to give evidence or cross-examined at trial.
In her judgment, Judge Truman held that the Claimant had to “satisfy” the test in Wood v TUI  EWCA Civ 11 (CA). She considered there were deficiencies in Professor Pennington's report and that it was open for 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 claim will not succeed”. Professor Pennington's report was ultimately rejected and the claim was dismissed.
The Claimant thereafter appealed. The appeal came before Mr Justice Martin Spencer. The central question in the appeal was whether Judge Truman erred in rejecting Professor Pennington's report in the absence of any evidence challenging or contradicting his conclusions. Mr Justice Martin Spencer raised a fundamental issue concerning the proper approach to expert evidence which is ‘uncontroverted'. He considered there were two questions to be asked: “first, whether a court is obliged to accept an expert's uncontroverted opinion even if that opinion can properly be characterised as bare ipse dixit and, if not, what are the circumstances in which a court is justified in rejecting such evidence; and, second, whether, in any event, Professor Pennington's report could in fact be properly described as no more than a bare ipse dixit entitling the learned judge to reject it despite being uncontroverted”.
He considered Professor Pennington's report was uncontroverted, as TUI did not call any evidence to challenge or undermine the factual basis of the report, nor was there any successful attempt to undermine the factual basis of the report by cross-examination of either the Claimant, his wife, or Professor Pennington. Further, Mr Justice Martin Spencer held that the dicta in Wood v TUI had not been elevated to a special test.
TUI subsequently appealed the decision.
Court of Appeal
The appeal came before Lord Justice Bean, Lady Justice Asplin and Lord Justice Nugee. Lady Justice Asplin and Lord Justice Nugee allowed the appeal, with Lord Justice Bean providing a withering dissent.
Lady Justice Asplin considered that the authorities did not support the ‘bright line approach' adopted by Mr Justice Martin Spencer. She stated that there was no rule that an expert's report which is uncontroverted and which complies with Part 35 CPR cannot be impugned in submissions and thereafter rejected by the Judge. It depended on the circumstances of the case. Lady Justice Asplin did not consider that Judge Truman decided that Professor Pennington's report was ‘wrong' in the sense of expressly rejecting his conclusion; rather, she decided the report was insufficient to satisfy the burden of proof in relation to causation because of its deficiencies.
It had been alleged in the appeal that it was unfair to only challenge an expert's evidence in closing submissions. Lady Justice Asplin, however, said she could “see nothing which is inherently unfair in seeking to challenge expert evidence in closing submissions”. Whilst it was a high-risk strategy to not adduce evidence nor seek to cross-examine an expert, there was nothing impermissible about it. She considered that as long as the expert's veracity was not challenged, a party could reserve its criticisms of a report until closing submissions. It was not for the opposing party to make good the deficiencies in the Claimant's evidence. As such, the appeal was allowed.
However, Bean LJ provided a powerful dissent. Whilst he considered that Mr Justice Martin Spencer was wrong to hold that a judge was effectively bound to accept uncontroverted expert evidence, he profoundly disagreed with Lady Justice Asplin in her view that a party could reserve its criticisms of a report until closing submissions. He was of the view that the Claimant did not have a fair trial of his claim and the courts should not allow litigation by ambush. In light of Bean LJ's dissent, it was unsurprising that permission to appeal the decision to the Supreme Court was granted.
The Supreme Court was tasked with considering what the scope of the rule was, based on fairness, that a party should challenge by cross-examination evidence that it wished to impugn in submissions at the end of trial. Further, they considered whether the rule extended to attacks in submissions on the reliability of a witness's recollection and of the reasoning of an expert witness, and if it did, whether there was unfairness in the way in which the trial judge conducted the trial in this case.
The Supreme Court unanimously found for Mr Griffiths and considered that he had an unfair trial.
The Court referred to Bean LJ's dissent in which he referred to Phipson on Evidence, which set out that, in general, a party is required to challenge on cross-examination the evidence of any witness of the opposing party if it wishes to submit to the court that the evidence should not be accepted. There are, however, circumstances where this rule may not apply. The Court gave a number of examples:
- Firstly, the matter to which the challenge is directed is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain.
- The evidence of fact may be manifestly incredible, and an opportunity to explain on cross-examination would make no difference.
- There may be a bold assertion of opinion in an expert's report without any reasoning to support it (a bare ipse dixit). However, reasoning which appears inadequate and is open to criticism for that reason is not the same as a bare ipse dixit.
- There may be an obvious mistake on the face of an expert report.
- The witnesses' evidence of the facts may be contrary to the basis on which the expert expressed his or her view in the expert report.
- An expert has been given a sufficient opportunity to respond to criticism of, or otherwise clarify their report.
- A failure to comply with the requirements of CPR PD 35.
In this case, TUI had put Mr Griffiths to proof in respect of his claim. TUI chose not to lodge their expert microbiological report and failed to lodge their expert gastroenterological report in a timely manner. No witnesses of fact were called by TUI. They chose not to call Professor Pennington, and the Part 35 questions they had put were not clearly focused on the criticism in counsel's submissions. Although Professor Pennington's report was terse and could (and should) have included more expansive reasoning, it was far from a bare ipse dixit. None of the exceptions the court identified applied to Professor Pennington's evidence. As such, in the absence of proper challenge on cross-examination, it was not fair for TUI to advance the criticisms that it did in its submissions or for the trial judge to accept those submissions.
The Supreme Court held that both the trial judge and the majority of the Court of Appeal erred in law in a significant way. Consequently, Mr Griffiths did have an unfair trial. The Court was satisfied Mr Griffiths had established his case on the balance of probabilities.
At the end of the judgment, reference was made to Sir Brian Leveson and Burnett LJ's obiter dicta in Wood v TUI. Whilst Burnett LJ was “unquestionably correct” that the burden lies on a claimant to prove that food or drink provided by the hotel caused their illness, the suggestion that it may be “very difficult to do so” in the absence of others who consumed the food may be questionable in the light of Professor Pennington's evidence that most cases of infective gastroenteritis caused by eating food are sporadic. In any event, when considering the use of the term “excluded” when referring to other alternative causes of illness, the court agreed that term if it was meant they were to be discounted as less likely causes of illness than the impugned food or drink.
Although TUI expressed concerns regarding the consequences of the appeal being upheld, the court did not consider that it meant that in cases of modest value, where a claimant presents an inadequately reasoned expert report, a defendant will have to obtain their own report and require the claimant's expert to attend for cross-examination. There may be more “economic” ways of testing the expert's evidence, such as focused Part 35 questions.
Quite properly, the Court has at the heart of this judgment the importance of a fair trial. It puts an end to ambushes of expert reports by way of submissions, as has been the practice in the travel sphere (as well as in other personal injury cases) for some time. Notably, by reopening comments in relation to Wood, we should not see the resurgence of a practice which arose following Martin Spencer J's judgment, where defendants were applying for their own expert evidence and for cross-examination of a claimant's experts in low-value cases. That is undoubtedly welcome, as during that phase in the Griffiths litigation, questions in respect of proportionality arguably arose. It also appears to put an end to suggestions that a failure to exclude other causes of illness renders a case worthy of being dismissed.
This judgment will ultimately change the way in which parties run these cases. Defendants will need to be far more considered with their Part 35 questions and their case management decisions. It remains to be seen what other “economic” ways of testing the expert's evidence could arise, but I suspect that a new focus will arise on Part 35 questions.
Nonetheless, in its efforts to remind us all to place fairness at the heart of a trial, this judgment can only be seen as a welcome one.
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