The Dekagram: 4th December 2023

Whistlestop Tour of Griffiths v Tui (in case you missed it)

Last Wednesday, the Supreme Court handed down judgment in Griffiths v TUI [2023] UKSC 48. Dominique Smith wrote a detailed analysis that same day, providing salient commentary valuable for travel and PI practitioners alike. In case you haven’t had the chance to consider the case yet, here’s an overview.

Background

Mr Griffiths booked an all-inclusive package holiday with TUI to Turkey. While there, he became unwell with symptoms of gastric illness. A stool sample showed the presence of both parasitic and viral pathogens.

Mr Griffiths brought a claim against TUI. Liability was denied. For a range of reasons, TUI did not have any expert evidence upon which to rely at trial, and so the only expert evidence in relation to causation was that of Mr Griffiths.

At first instance, the Claimant relied upon the expert evidence of a microbiologist who was not cross-examined. The judge considered that it was open to the Defendant to sit back and do nothing but make submissions at the end of trial about deficiencies in the Claimant’s evidence. The expert report was rejected, and the Claim failed.

Spencer J allowed the appeal in the High Court. In doing so, he considered whether a court has to accept uncontroverted expert evidence even if it was bare ipse dixit, and, if not, when it can reject such evidence. He held that a court was not entitled to reject uncontroverted expert evidence (and that the report in this case went beyond bare ipse dixit). The appeal was allowed.

The Court of Appeal allowed TUI’s appeal. The majority held that there was no specific rule that uncontroverted expert evidence which complies with Part 35 cannot be impugned in submissions and rejected by the court. The report was found to be insufficient to satisfy the burden of proof upon Mr Griffiths, and that there was nothing inherently unfair about making closing submissions to that effect.

Supreme Court

The Supreme Court disagreed. In allowing Mr Griffith’s appeal, the court held the following (at [70]):

• The general rule in civil cases is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which they wish to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.
• In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.
• The rationale of the rule includes fairness to the party who has adduced the evidence of the impugned witness.
• Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy.
• Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.
• Cross-examination gives the witness the opportunity to explain or clarify their evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.
• The general rule should not be applied rigidly, and its application depends on the circumstances of the case, with the determining criterion being the overall fairness of the trial.
• There are instances where the general rule above may not apply, with the court providing the following examples:
  • Then the challenge to the evidence is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain (at [61]).
  • Where the evidence of fact is “manifestly incredible”, and the chance to explain would make no difference (at [62]).
  • Where there is a bold assertion of opinion in an expert report without any reasoning to support it (at [63]).
  • Where there is an obvious mistake of fact on the face of an expert report (at [64]).
  • Where witnesses of fact give evidence that differs from the factual basis upon which the expert report is based (at [66]).
  • Where an expert has been given sufficient opportunity to respond to criticisms, or clarify, their report, thereby negating the need for cross-examination (at [67]).
  • Where there has been a failure to comply with the requirements of CPR PD 35 (but a party seeking to rely on such a failure would be wise to seek the directions of the trial judge before doing so) (at [68]).

Whether or not you agree with the Supreme Court’s reasoning, it will impact how lower value personal injury claims such as these are run.