Our Cornish correspondent informs us that the county is currently overrun with members of the G7 whooping it up, putting the jam and cream on scones in the wrong order and otherwise getting under the feet of the good people of Kernow. Meanwhile, our Scottish friends tell us that the nation’s ports are closed to cruise ships, even including those passengers originally from Scotland, but who embarked the vessel in England. We’re left to wonder whether the inability of the MSC Virtuosa, and others, to dock at Greenock constitutes a significant alteration to its itinerary within the meaning of Regulation 11 of the Package Travel and Linked Travel Arrangements Regulations 2018, and if so, what the effect of this might be. Elsewhere, there’s good news and bad news for Michael O’Leary; the General Court of the EU has nullified another grant of state aid to an airline, this time the assistance provided by the German government to Condor, but on the other hand, the Competition and Markets Authority has opened enforcement cases against Ryanair and BA in the latest chapter in the Great Refund Saga. The differing approach to the travel industry between the governments of the EU and others, on the one hand, and the UK government, on the other, has been so marked that even MPs have now noticed, with questions being asked in the House of Commons about how long the UK travel and tourism industry can survive under current conditions.
Expert Evidence in Food Poisoning Claims: Griffiths v TUI Revisited
Since the decision in Griffiths v TUI UK Ltd  EWHC 2268 (QB) it has become more and more common for Defendants to apply to cross examine the Claimant’s expert in gastric illness cases. In Taylor v TUI UK Ltd in the county court at Newcastle upon Tyne, 22nd January 2021 (as reported by Civil Litigation Brief), His Honour Judge Freedman allowed a Claimant’s appeal against a deputy district judge’s decision to grant such permission.
On appeal, while stressing that he was not intending to decide the appeal on the basis that the court did not have requisite jurisdiction to make the order, the judge made the interesting observation that there does not appear to be any express rule permitting the court to make the order sought, i.e. that the Claimant be directed to call her expert to give evidence at trial.
The Defendant’s application relied heavily upon Griffiths. It did not, however, point to any deficiency in reasoning in the expert’s report. In fact, no criticism was levelled against the report at all. HHJ Freedman noted this was unsurprising since it was both CPR compliant and well-reasoned. The expert had considered alternative causes of illness. He had accepted the factual account of the Claimant at face value, as he was obliged to do, and then explained his opinion that on balance the illness was caused by the consumption of contaminated food. The Defendant argued that before Griffiths it would have been possible for counsel acting on behalf of a tour operator in closing submissions to identify flaws in the report and invite the court to disregard its conclusions on the basis of defective reasoning. HHJ Freedman accepted that that approach may previously have been adopted and that it was excluded by the decision in Griffiths.
The judge at first instance was reminded of the provisions of the CPR, including CPR 35.5(2) which provides that “If a claim is on the small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.” The judge concluded that if the expert was not cross-examined there was a real risk that there would not be a fair trial. He did not set out why the trial would be unfair. HHJ Freedman held that:
“It is not enough in the context of a fast track claim, with a value limited to £3,000, merely to assert that unless a defendant is given the opportunity to try and shake or displace the conclusion reached by an expert instructed on behalf of the claimant the judicial process is somehow rendered unfair.”
In his judgment there must be something more specific than that. For a court to take the exceptional and unusual course of granting a defendant the opportunity to cross-examine a claimant’s expert, there must be demonstrated some flawed or deficient reasoning or some factual inaccuracy which needs to be exposed and clarified before the judge. Potentially (assuming there is such a power), it might have been appropriate to permit the Defendant to cross examine the expert if the Defendant had been able to identify something which rendered his conclusions unsafe, or some factual inaccuracy which meant he had provided his report on a false premise. Without such material, the court would not be being faithful to the CPR, which provide that expert evidence should only be permitted where necessary, and should usually be in written form only.
While the judge of course had a wide case management discretion, in addition to erring as above in principle, he had also failed to have adequate regard to proportionality. He should have had at the forefront of his mind the cost, the inconvenience to the doctor and the increased use of court resources.
HHJ Freedman noted that in light of Griffiths the probability is that the court would accept the conclusions of the expert. The remedy (if there is one) is, having asked Part 35 questions, for a defendant to seek permission to obtain their own report, which would likely require pointing to some error or deficiency in the expert’s report.
This decision once again highlights that, at least pending the outcome of the appeal in Griffiths, there are now limited opportunities for defendants in low value gastric illness claims to disturb an expert’s conclusion on causation. Of course one option, often overlooked, is to shake the foundation of the report through successful cross-examination of the claimant on relevant factual matters underpinning the conclusion. It is worth remembering that in Griffiths the claimant’s evidence was accepted in its entirety. It is far from uncommon for cross examination to successfully undermine a claimant’s factual evidence. We will of course report on the appeal in Griffiths, which is due to be heard next month.
About the Author
Ella Davis was called to the Bar in 2013. She undertakes work in the cross border field on behalf of both Claimants and Defendants. She has particular expertise in claims involving allegations of fundamental dishonesty and has a good deal of experience in conducting trials around the issues which arise from such allegations.
Will it Soon be Safe to Get into the Water? Jet Skis Revisited
Many of us will recall the man who made the journey from Scotland to the Isle of Man In December last year on his personal watercraft to see his girlfriend, despite the second wave of the pandemic being in full force.
Perhaps in part prompted by those memorable efforts on the part of one individual to flaunt the pandemic’s travel restrictions, the UK Government has recently published a briefing paper on the law relating to jet skis and the “legislative gap” around their negligent use.
The briefing paper explains the law governing the use of personal watercraft (“PWC”), which is the technical description of what are often colloquially known as jet skis (“jet ski” is the trade name for one particular brand of motorised personal watercraft manufactured by Kawasaki).
PWCs are not covered by the same legislation as ships or small boats taking passengers, since there is precedent for saying that PWCs are not defined as ships (see R v Goodwin  1 LI Rep 432 (CA), which held that a PWC is not a “ship” for the purposes of s.58 of the Merchant Shipping Act 1995). They are therefore not subject to the 1972 Convention on the International Regulations for Preventing Collisions at Sea (“COLREGS”).
The government has previously considered legislating to bring PWCs within the definition of a “ship” in Merchant Shipping legislation, however substantive legislative changes did not follow. The view of successive UK governments has remained that it is the responsibility of local authorities and harbour authorities to regulate personal watercraft using local bye-law powers to, for instance, restrict the times and places that PWC can be used.
Power to Regulate
There are currently no national regulations governing the ownership and use of recreational craft in inshore waters. This is because there is a common law right of navigation permitting people to pilot a vessel wherever they like in tidal waters. However, this common law right can be restricted through the introduction of bye-laws by:
- Harbour authorities, which are statutory bodies, and can make bye-laws within the harbour area, and
- Local authorities in England and Wales, which have several powers to make bye-laws regulating the waters outside harbour authority areas.
Issues with the Current Legislation
The paper identifies a number of shortcomings in the current regulation of PWC’s including:
- The lack of any formal training or licences by users of them, because they do not attract the same regulation as ships;
- The fact that once the craft leaves a harbour area, the responsibility lies with the local authority, who may lack the means to enforce bye-laws with regular coastal patrols;
- The fact that even if bye-laws are in place, it can be costly to bring about a prosecution;
- The fact that PWCs cannot be included or caught by Harbour Directions, used by harbour authorities to regulate the use of their waterways.
The papers set out a number of initiatives and proposed changes which have been put forward by various governments since 2005. In short, not very much has happened yet, though it does appear that the issue was gaining some traction again amongst MPs in 2019, prior to the pandemic. As yet however, no new legislation has been tabled.
With the likely increase in staycations this year and next as the effects of the pandemic linger, it may well be a topic which comes to the fore again. Until then, it appears that for this summer at least, jet skiers can continue to enjoy themselves.
About the Author
Chris Pask was called in 2013. He undertakes work arising out of contractual disputes, including cases involving sale of goods and supply of services, and in particular claims raising issues of fundamental dishonesty. Chris accepts instructions by way of Direct Public Access.
In the latest in our occasional series of Jobs You Know You’d Like To Do, we bring you…judge on the Falkland Islands. Yes, the Judicial Appointments Committee is advertising for applicants for the post of Senior Magistrate, the only resident judicial office on the Islands, South Georgia and the South Sandwich Islands, and the British Antarctic Territory. Situated just 8,000 miles off Cornwall, the Islands are currently on the Green List for travel, and, according to the ad, boast ‘a varied social calendar’ and ‘an absence of traffic jams’. We must admit to being tempted. But could the islands handle an influx of 1CL? Will the penguins stand for it? Interested readers should apply here: Senior Magistrate job with Falklands Islands Government | 739074 (lawgazette.co.uk)