07
Oct
21
Articles, Travel & Cross Border Claims
Griffiths v TUI: appeal allowed…

Today, the Court of Appeal handed down their Judgment in Griffiths v TUI [2021] EWCA Civ 1442 (CA). Those travel practitioners who deal with food poisoning claims will be familiar with Mr Justice Martin Spencer’s judgment in this case last year, which paved the way for claimants to argue that medical reports in these claims were uncontroverted and should therefore be accepted. The consequence of this judgment was that defendants began making applications, seeking to cross-examine medical experts at trial, or indeed to obtain their own expert evidence.

The Court of Appeal has allowed the appeal in Griffiths. However, as can be seen in the judgment, there is a strong dissent from Bean LJ, which will likely result in this case being taken to the Supreme Court.

Factual background

The Claimant booked an inclusive package holiday with the Defendant to Turkey for himself and his family for the period of the 2 August 2014 to the 16 August 2014. He became unwell during the course of the holiday, with symptoms of gastric illness beginning on the evening of the 4 August 2014. He later was admitted to hospital and was diagnosed with acute gastroenteritis. A stool sample was taken and showed both parasitic and viral pathogens.

Proceedings were subsequently issued and liability was denied. It is of note that TUI was granted permission to obtain a report from a consultant microbiologist and a gastroenterologist, yet failed to serve either reports in time. Following an unsuccessful application for relief from sanctions and to adduce gastroenterological evidence, TUI were left with no expert evidence for the purposes of the trial.

The trial came before Judge Truman, who accepted the Claimant’s evidence. She found that he had been ill as he described, that he ate and drank what he described, that he fell ill on the dates he specified and had been hospitalised. Professor Pennington, a microbiologist, produced a report relating to causation, which was before the Judge, and answered Part 35 questions. The report was described by the Judge as “minimalist”. Professor Pennington was not, however, called or cross-examined at trial.

Judge Truman said in her judgment that the Claimant had to “satisfy” the test in Wood v TUI [2018] and consequently considered there were deficiencies in Professor Pennington’s report. She said that it was open for 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”. The Judge rejected Professor Pennington’s report and the claim was therefore dismissed.

The Claimant appealed the decision and the appeal came before Mr Justice Martin Spencer. The central question in the appeal was whether Judge Truman erred in rejecting Professor Pennington’s report in the absence of any evidence challenging or contradicting his conclusions. Mr Justice Martin Spencer raised a fundamental issue concerning the proper approach to expert evidence which is ‘uncontroverted’. He considered there were two questions to be asked: “first, whether a court is obliged to accept an expert’s uncontroverted opinion even if that opinion can properly be characterised as bare ipse dixit and, if not, what are the circumstances in which a court is justified in rejecting such evidence; and, second, whether, in any event, Professor Pennington’s report could in fact be properly described as no more than a bare ipse dixit entitling the learned judge to reject it despite being uncontroverted”.

Mr Justice Martin Spencer considered Professor Pennington’s report was uncontroverted, as TUI did not call any evidence to challenge or undermine the factual basis of his report, nor was there any successful attempt to undermine the factual basis of his report by cross-examination of either the Claimant or his wife, nor by cross-examining Professor Pennington. Further, Mr Justice Martin Spencer said that the dicta in Wood v TUI had not been elevated to a special test.

TUI thereafter appealed the decision.

The Judgment of the Court of Appeal

The appeal came before Lord Justice Bean, Lady Justice Asplin and Lord Justice Nugee. Lady Justice Asplin and Lord Justice Nugee allowed the appeal.

Lady Justice Asplin considered that the authorities did not support the ‘bright line approach’ adopted by Mr Justice Martin Spencer. She stated that there was no rule that an expert’s report which is uncontroverted and which complies with Part 35 CPR cannot be impugned in submissions and thereafter rejected by the Judge. It depended on the circumstances of the case. Lady Justice Asplin did not consider that Judge Truman decided that Professor Pennington’s report was ‘wrong’ in the sense of expressly rejecting his conclusion; rather, she decided the report was insufficient to satisfy the burden of proof in relation to causation because of its deficiencies.

It had been alleged in the appeal that it was unfair to only challenge an expert’s evidence in closing submissions. Lady Justice Asplin, however, said she could “see nothing which is inherently unfair in seeking to challenge expert evidence in closing submissions”. Whilst it was a high risk strategy to not adduce evidence nor seek to cross-examine an expert, there was nothing impermissible about it. She considered that as long as the expert’s veracity was not challenged, a part could reserve its criticisms of a report until closing submissions. Notably, Lady Justice Asplin said that it was not for the opposing party to make good deficiencies in the Claimant’s evidence. As such, the appeal was allowed.

However, Bean LJ provided a powerful dissent. Whilst he considered that Mr Justice Martin Spencer was wrong to hold that a judge was effectively bound to accept uncontroverted expert evidence, he profoundly disagreed with Lady Justice Asplin in her view that a party could reserve its criticisms of a report until closing submissions. He considered that the Claimant did not have a fair trial of his claim and the courts should not allow litigation by ambush.

Comment

In the light of Bean LJ’s dissent, it seems inevitable that this matter will be appealed further to the Supreme Court. But where does that leave us now? It seems that the approach to food poisoning cases will now ultimately revert back to the position pre-Griffiths, where defendants were able to sit and challenge an expert’s report in submissions, in the hope of dismissing a claim. Undoubtedly, many food poisoning cases that would have settled prior to the appeal judgment, will now fight to trial.

Written by or involving: Dominique Smith

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