The Supreme Court and Uncontroverted Expert Evidence – Griffiths v TUI

Key Facts         

Mr Griffiths (the Claimant) purchased an all-inclusive holiday from the tour operator TUI UK Ltd (the Defendant) to a resort in Turkey, and during that holiday in August 2014 he suffered serious gastric illness as a result of contaminated food and drink consumed in the hotel. 

Mr Griffiths subsequently instructed Irwin Mitchell's International Serious Injury team to pursue a claim against his tour operator for breach of contract and pursuant to the Package Travel, Package Holidays and Package Tours Regulations 1992. 

The Long-haul Flight to the Supreme Court

At trial, Mr Griffiths relied on the expert evidence of Professor Pennington, Consultant Microbiologist, in relation to causation, who concluded that his illness had been caused by food and drink consumed at the hotel. Although it had permission to do so, the Defendant tour operator did not rely on its own expert evidence. Despite this, and the fact that she accepted the evidence of Mr Griffiths,  HHJ Truman, in the County Court in Birmingham, held that she was not satisfied that the expert evidence showed that it was more likely than not that Mr Griffiths’ illness had been caused by eating food and drink at the hotel, and dismissed the claim. 

On appeal to the High Court, this decision was overturned by Martin Spencer J. In summary, Martin Spencer J recognised that the appeal raised a question concerning the proper approach of a Court towards expert evidence which is ‘uncontroverted’ and explained that by ‘uncontroverted’, he meant expert evidence which the Defendant did not seek to challenge by way of evidence and which the Defendant did not seek to challenge by way of cross-examination. 

On appeal to the Court of Appeal, the High Court decision was overturned with a split panel of 2 to 1. Asplin LJ disagreed with Martin Spencer J, and held that there was no “bright line rule” in determining when an uncontroverted expert report, whether or not compliant with CPR PD 35, can be impugned in submissions, and held that “ it all depends upon all of the circumstances of the case, the nature of the report itself and the purpose for which it is being used in the claim.” She ruled that the Court was entitled to reject uncontroverted expert evidence where there is reason to do so and could not see anything inherently unfair in seeking to challenge expert evidence in closing submissions.  Nugee LJ agreed and considered that as a matter of basic principle it was the function of trial judges to evaluate all the evidence before them in reaching their conclusions on factual issues. 

However, and rather notably, Bean LJ left a zinging dissent for legal commentators to mull over in that he considered it trite law that, in general, a party in our adversarial system is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the Court that the evidence should not be accepted on that point. Essentially, if a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected. As such, he said that Professor Pennington should have been challenged in cross-examination on the conclusion that he reached supporting the case on causation.

Bean LJ expressed his profound disagreement with Asplin LJ and said that the claimant did not have a fair trial of his claim and that the courts should not allow litigation by ambush. Indeed, Bean LJ left the door open for Mr Griffiths to appeal to the final arbiter in the land, and he  promptly sought, and was granted, permission to appeal to the Supreme Court.

The Supreme Court Judgment

Following a 2-day hearing before a panel of five Justices on 21 and 22 June 2023, the Supreme Court has today (29 November 2023) handed down its much-awaited judgment in Griffiths v TUI UK Limited [2023] UKSC 48. 

The Court has found unanimously in Mr Griffiths’ favour and ruled that he did not receive a fair trial at first instance. 

In reaching this judgment, the panel made up of Lord Hodge, Lord Lloyd-Jones, Lord Briggs, Lord Burrows and Lord Stephens (a.k.a. the Supremes) has provided invaluable guidance to practitioners and clarity on how “uncontroverted” expert evidence should be treated by the Courts in ensuring fairness at trial. 

The Supremes have helpfully set out 6 key flags to assist practitioners, and ultimately the Courts, in considering fairness:

1. Cross examination (witnesses and experts) – there is a general rule in civil cases that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a point which he or she wishes to submit to the court should not be accepted. 
2. In the adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.
3. Fairness to the party - the rationale of the rule, i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.
4. Fairness to the witness - whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.
5. Enabling the Judge - maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. 
6. Flexibility - the rule should not be applied rigidly because all cases should be considered on their context, It is not an inflexible rule and there is bound to be some relaxation of the rule. The application depends on the circumstances of the case as the over-riding criterion is the overall fairness of the trial. 

As such, taking the above red flags into account, the Supremes allowed Mr Griffiths’ appeal because of the approach taken by TUI’s legal team in putting him to proof of his claim but then choosing not to lodge a microbiology report, choosing not to lodge a gastroenterology report, failing to call any experts or witnesses to be cross examined, failing to ask targeted Part 35 questions and leaving it too late to set out their case. 

Ultimately, the Supreme Court has ruled that Professor Pennington’s report was sufficient and, in the absence of a proper challenge on cross-examination, it was not fair for TUI to advance the detailed criticisms of Professor Pennington’s report in closing submissions and for the judge to accept those submissions, and dismiss the claim. The Court unanimously ruled that Mr Griffiths did not receive a fair trial.

Conclusion

In conclusion, the Supreme Court accepted Professor Pennington’s uncontroverted conclusion that on the balance of probabilities the cause of Mr Griffiths’ illness was food or fluid ingested in the hotel, and therefore finding for him.

Legal Team for Mr Griffiths

Jatinder Paul, Partner, Irwin Mitchell

Rob Weir KC, Devereux Chambers

Tom Westwell, Devereux Chambers

Stephen Cottrell, Devereux Chambers

Hannah Clifford, Solicitor, Irwin Mitchell

Aparajiti Arya, Devereux Chambers