Uncontroverted Expert Evidence: Griffiths -v- TUI UK Limited [2020] EWHC 2268 (QB)

• Published date: 29 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Hill Dickinson
• Author: Sarah Barnes and Jack Redrup

Following a recent High Court judgment, it is now critically important for defendants to be pro-active and obtain their own expert evidence. Defendants can no longer proceed to trial and rely on criticising a claimant's expert report to succeed in defending a claim.

In a gastric-illness breach of contract claim, Spencer J in Griffiths -v- TUI UK Limited [2020] considered the correct approach to uncontroverted expert evidence. The court allowed an appeal against the dismissal of the claimant's claim at first instance. Spencer J held that so long as an expert report complies with CPR Part 35, and if there is no challenging expert evidence and the factual underpinning of the expert report are unshaken in cross-examination, that report must be accepted by the court.

Since the ruling in Wood -v- TUI Travel plc [2017] (see our coverage of this case), package travel gastric-related claims have generally been defended either on the basis that the factual underpinnings of the expert evidence are not made out or are false, or that the reasoning in the expert report is so deficient that, following the Court of Appeal's comments with regards to causation, it should not be accepted. While Wood remains the trite law in this area, Spencer J's judgment has initiated an important change in how these cases will now proceed.

The significance of this case extends beyond the confines of gastric-illness and package travel cases. It sets an important precedent with regard to how courts will approach expert evidence in the future.

Background

The claimant, Mr Peter Griffiths, stayed at an all-inclusive Turkish resort for a two-week holiday with his wife and son commencing on 2 August 2014. The claimant brought a claim against the tour operator TUI under the Package Travel Regulations for personal injury on the basis that he had suffered gastric-intestinal illness. He alleged that he suffered this illness due to his consumption of contaminated food and drink from the resort.

The claimant had relied on the expert report of a microbiologist and the answers his expert gave to questions put to him under CPR Part 35. It was the claimant's expert's view that the claimant had, on the balance of probabilities, contracted his illnesses through the consumption of contaminated food or fluid from the hotel.

Despite having permission, the defendant failed to obtain and serve in time an expert report from either a gastroenterologist or consultant microbiologist. After the claimant served its...