Litigation By Ambush? Expert Evidence Uncontroverted' Until Closing Submissions

• Published date: 17 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gatehouse Chambers
• Author: Ms Emily Betts

Co-authored by Amy Held

Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442

Background

This appeal raised the question of "whether and if so, in what circumstances, the court can evaluate and reject what is described as an "uncontroverted" expert's report"; i.e., one in respect of which 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.

The expert report in question ('the Report') was prepared by one Professor Pennington. It was adduced by the Claimant Respondent ('Mr Griffiths') in respect of gastric illness allegedly suffered as a result of consuming contaminated food or drink whilst on an all-inclusive holiday package provided by the Appellant Defendant ('TUI'). Mr Griffiths sought to rely on the Report in relation to causation.

As a result of TUI's default of several court orders relating to expert evidence, the Report was the only expert report before the trial judge (HHJ Truman) in relation to causation. The only other expert evidence going to causation were Professor Pennington's answers to the questions put to him by TUI in respect of the Report pursuant to CPR Part 35; at trial, Professor Pennington did not give oral evidence and was not cross-examined on the Report.

The Report itself complied with CPR PD 35 but was described by HHJ Truman as 'minimalist.' The substance of the evidence comprised three of the four paragraphs constituting the body of the Report. Critically, Professor Pennington identified two possible causes of Mr Griffiths' illness but, as summarized by Asplin LJ: "did not set out his full reasoning, nor explain how he was able to reach his conclusion [on causation] when he could not exclude the possibility of there having been two infections." Furthermore, HHJ Truman had noted that Professor Pennington had not, as requested, given a range of professional opinion nor indicated where his opinion might fall within such range in his CPR Part 35 answers.

HHJ Truman noted that the burden of proof was on Mr Griffiths, and considered that 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 claim will not succeed." HHJ Truman thus found that Mr Griffiths had not proved his case, and therefore dismissed his claim.

On Mr Griffiths' appeal before Martin Spencer J, HHJ Truman's order was set aside and judgment entered for Mr...