Background
The claimant, Mr Griffiths, purchased an all-inclusive two-week holiday from TUI and, while on holiday in August 2014, fell ill and was subsequently diagnosed with acute gastroenteritis. With the exception of two meals, one of which was at Birmingham Airport on his departure, all other meals Mr Griffiths consumed during the holiday were prepared and provided by the hotel at which he was staying.
Mr Griffiths obtained a pre-issue report from a consultant gastroenterologist, who opined that, on the balance of probabilities, Mr Griffith’s illness was caused by the poor hygiene standards within the hotel and a breakdown in general food hygiene processes.
County Court decision
In July 2017, Mr Griffiths proceeded to issue a claim against TUI in contract and pursuant to the Package Travel, Package Holidays and Package Tours Regulations 1992. TUI defended the proceedings and, pursuant to the case management directions, the parties were permitted to obtain expert reports from consultant microbiologists. However TUI’s solicitors subsequently confirmed that it did not intend to rely on expert evidence from a microbiologist in the case.
The trial of the proceedings took place in September 2019. Mr Griffiths and his wife gave evidence at trial, were cross-examined and were found by the trial judge, HHJ Truman, to be entirely honest and straightforward witnesses. It was the microbiologist expert evidence submitted on behalf of Mr Griffiths, however, which proved to be problematic in the claim.
Professor Pennington, a consultant microbiologist, provided an expert report in support of Mr Griffith’s claim in which Professor Pennington stated that, on the balance of probabilities, Mr Griffith’s illness was caused by consuming food or beverages provided to him by the hotel. Unusually, TUI did not submit any evidence challenging or undermining the conclusion drawn by Professor Pennington in his expert report. Additionally Professor Pennington was not required to be called or cross-examined. The expert evidence put forward by Mr Griffiths was therefore “uncontroverted” (i.e. not disputed) when the claim came to trial.
Notwithstanding this, HHJ Truman, evaluated the contents of Professor Pennington’s report and considered there were a number of deficiencies. In particular the judgment noted:
- No detail was provided about the alleged breaches of health and hygiene procedures by the hotel
- The report did not explain why a viral cause of Mr Griffiths’ illness should be discounted when evidence of a virus was found in samples taken from Mr Griffiths at the hospital
- The report was described by the Judge as “minimalist” and was criticised by the Judge for failing to provide a range of opinion
However, despite these criticisms, there was no suggestion that the report was non-compliant with the basic requirements set out in Part 35 of the Civil Procedure Rules concerning expert evidence. HHJ Truman’s judgment went on to conclude:
“I am not satisfied that the medical evidence shows…that it is more likely than not that the claimant’s illness was caused by ingesting contaminated food or drink supplied by the hotel… The court is not a rubber stamp to just accept what someone has said. When causation is clearly in issue, I do consider it incumbent on the medical experts to provide some reasoning for their conclusions.”.
Judge Truman further decided that Mr Griffiths had not proved his case on causation and dismissed his claim. She pointed out that the burden of proof was on Mr Griffiths and 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.”
High Court decision
Mr Griffiths appealed to the High Court, arguing that the court had erred in rejecting the uncontroverted expert evidence on causation from Professor Pennington.
High Court Judge Martin Spencer accepted there were serious deficiencies in Professor Pennington’s report but was nonetheless of the view that the report went a long way towards substantiating Professor Pennington’s opinion. Martin Spencer J held that Judge Truman was not entitled to reject the expert evidence of Professor Pennington saying, where an expert report is uncontroverted, the court is not entitled to subject the report to the same kind of analysis and critique as if it were evaluating a contested report. The judgment ruled:
“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”.
The appeal was therefore allowed and judgment was entered for Mr Griffiths.
Court of Appeal decision
TUI subsequently appealed to the Court of Appeal. The Court of Appeal was asked to consider the proper approach of a court towards uncontroverted expert evidence as follows:
- Where such evidence is uncontroverted, is it still open to the court to examine the report and the reasoning leading to the expert’s conclusions and reject those conclusions if the court is dissatisfied with the reasoning?
- Or is the court obliged, subject to exceptional circumstances, to accept the expert’s conclusions?
The Court of Appeal held 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. Delivering the leading judgment Lady Justice Asplin went on to say:
“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 PD35, even if the conclusion was only supported by nonsense”.
The majority concluded that Judge Truman had been entitled to conclude that Professor Pennington’s “minimalist” report was insufficient to satisfy the burden of proof. However, notably, the Court of Appeal delivered a majority decision as the judges were not all in agreement about the decision.
Conclusion
The Court of Appeal decision is an important reminder that claimants must ensure that any expert evidence they seek to rely on must not only meet the requirements of CPR Part 35 but must also be sufficiently well analysed to satisfy the burden of proof. A well-reasoned expert report is far more likely to be given weight by the court, even where it is challenged by your opponent.
While the judgment makes clear that, in principle, it is open to a defendant to “sit back” and wait until closing submissions to submit any criticisms of an expert’s report, it is equally clear this is a high-risk strategy and should be pursued with caution. It should also be noted that Lord Justice Bean gave a strong dissenting judgment in the appeal, saying “In my view Mr Griffiths did not have a fair trial of his claim. The courts should not allow litigation by ambush. I would therefore have dismissed TUI’s appeal”. Notwithstanding some may have sympathy for Mr Griffith’s position, the judgment serves as a warning to parties and their legal representatives that the Court will not simply accept expert evidence, even if it not challenged by your opponent.
Elizabeth Butler