Last week the Supreme Court handed down its highly anticipated decision in TUI UK Ltd v Griffiths [2023] UKSC 48. The Court unanimously allowed the appeal of the Claimant, Mr Griffiths, reversing the decision of the Court of Appeal. These proceedings arose out of a personal injury claim brought by Mr. Griffiths in respect of a gastric illness that he suffered whilst on a package holiday to Turkey, supplied by TUI, the Defendant.
The Supreme Court explored whether, and if so in what circumstances, a trial judge can decide that a claimant has not proved their case where the evidence of a claimant’s expert witness on the central issue in the case has not been challenged by a defendant in cross-examination of that expert witness.
Background
Mr Griffiths purchased an all-inclusive holiday from TUI in Turkey. During his vacation, he alleges he succumbed to a gastric illness as a result of contaminated food and drink consumed at the hotel. Subsequently, Mr. Griffiths issued proceedings against TUI for breach of contract and pursuant to Package Travel, Package Holidays and Package Tours Regulations 1992.
During the trial, Mr. Griffiths relied on the expert evidence of a microbiologist on causation, i.e. that the illness had been caused by the food and drink consumed at the hotel. The Defendant had obtained permission to adduce expert evidence but failed to serve a report from a microbiologist. Furthermore, the Defendant did not cross-examine the claimant's expert. Despite this, in closing submissions, the Defendant argued that deficiencies in the expert's report, such as inadequate explanations and a failure expressly to disprove other possible causes, meant that Mr Griffiths had failed to prove his case.
The Judge in the County Court agreed with the Defendant's submissions and dismissed the claim on the basis that she was not satisfied that the medical evidence showed that it was more likely than not that the illness had been caused by eating food and drink at the hotel. On appeal in the High Court, this decision was overturned.
On appeal to the Court of Appeal, the High Court decision was also overturned. As Nugee LJ summarises at paragraph 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 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."
Mr Griffiths appealed to the Supreme Court in respect of the Court of Appeal decision.
The issue for the Supreme Court:
"Whether, and (if so), in what circumstances, can the court evaluate and reject what is described as an "uncontroverted" expert’s report?"
(An uncontroverted expert is an expert who has not been cross-examined)
Lord Hodge explained that a decision by a judge not to follow an opinion expressed by an uncontroverted expert will usually render a trial unfair. Unless the uncontroverted expert’s evidence is incredible, it must be accepted.
The Court also made clear that the rule in Browne v Dunn (1893) 6 R. 67 applies both to witnesses of fact and expert witnesses. (The rule being if counsel intends to rely on a version of events contradictory to a witness's testimony, then counsel must put that version of events to the witness on cross-examination). The precedent is not restricted to attacks on the reliability of a witness’s recollection or credibility, but is a wider rule based on essential procedural fairness.
The judge must decide the issues placed before the court by the parties; mindful of the core principle that the parties must each have a fair chance to meet the case put against them. Whilst the Claimant bears the burden of proof, under English law a trial judge does not decide the case by inquisition.
Applying the law to the facts, Lord Hodge concluded that in the absence of a proper challenge to the evidence of the Claimant’s microbiologist on cross-examination, it was not fair for the Defendant to advance criticisms of that evidence in its submissions, or for the trial Judge to accept those submissions. The Defendant’s objections were not focused on issues that were the criticised during the course of submissions and they did not put the Claimant’s expert on notice of those criticisms.
Lord Hodge therefore concluded that the Claimant had established his case on the balance of probabilities.
The key takeaway from this judgment, the ramifications being particularly apparent in low-value claims but equally applicable across the litigation piece, is the importance on CPR Part 35 questions. While the parties might be economical in their approach to evidence, by not relying on expert witness evidence and reports, meticulous use of carefully written CPR Part 35 questions should now be at the forefront of all parties and lawyer's minds when challenging the other side's case. Shortcomings in expert reports require "a focused cross-examination making the challenge and giving the expert the opportunity to explain his or her report" per the judgment.
This outcome appears, with hindsight, to be an obvious one and highlights the Court's continued and laser-like focus on the importance of efficiency, fairness and proportionality in litigation.
Judgment - TUI Ltd v Griffiths [2023] UKSC 48 – 29 November 2023
https://www.supremecourt.uk/cases/docs/uksc-2021-0208-judgment.pdf
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