Trial fairness generally dictates the challenge of evidence by cross-examination of witnesses, including expert witnesses - Nancy Kelehar, Temple Garden Chambers
15/12/23. Griffiths v TUI UK Ltd [2023] UKSC 48
Date of Judgment: 29/11/2023
Background
The Supreme Court has handed down an important judgment in the context of personal injury litigation. The underlying claim related to food poisoning (infective gastroenteritis) that the Claimant had suffered whilst on an all-inclusive holiday in Turkey in August 2014. Liability and causation remained in dispute, but due to late service of the Defendant’s expert evidence, the only expert report considered by the court on the issue of causation was the Claimant’s evidence of Professor Pennington, a microbiologist. He answered Part 35 questions from the Defendant but was not called to give evidence at trial.
The Claimant needed to prove that the food provided by the all-inclusive hotel caused their illness. At trial, various criticisms were made of Professor Pennington’s report by Defendant counsel in a skeleton argument and during closing submissions [16]. The trial judge observed that the expert’s explanations – in both his original report and in answer to Part 35 questions – were inadequate and he had failed to exclude other causes of the illness [17]. At first instance, the Claimant did not satisfy the burden of proof and his claim was dismissed [19].
Journey to the Supreme Court
In the High Court, Spencer J held that, in the absence of a competing report or challenge by way of cross-examination, the report was uncontroverted so could not be subjected to the same kind of analysis and critique as if the court were evaluating a contested report [22]. Further, the report was not a bare ipse dixit (or mere assertion); whilst there were deficiencies in the report, Professor Pennington’s opinion had been substantiated [25].
Asplin LJ in the Court of Appeal disagreed. She held that there is no rule that an expert’s report which is compliant and uncontroverted cannot be impugned in submissions [27]. Whilst it may be a risky strategy, Asplin LJ observed that there was nothing inherently unfair in seeking to...
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