TUI UK Ltd v Griffiths – a clarification of the principles around challenging expert evidence
Author: Morgan MacWilliams & Katherine David
Key Contact: Katherine David
In November 2023, the Supreme Court handed down its decision in TUI UK Ltd v Griffiths [2023] UKSC 48, regarding whether the court can reject what has been referred to as an “uncontroverted” expert report. The judgement can be accessed here.
This decision clarifies what happens when a party does not challenge an opposing party’s expert report, either by cross-examination or providing their own contradictory evidence, but chooses to challenge the report during closing submissions at trial.
Background
The Claimant was Mr Griffiths, a holidaymaker who purchased an all-inclusive package holiday to Turkey from TUI, during the course of which he became unwell with acute gastroenteritis as a result of allegedly consuming contaminated food and drinks from the hotel. Mr Griffiths brought a claim against TUI for breach of contract and pursuant to the Package Travel, Package Holidays and Package Tours Regulations 1992.
In relation to the issue of causation, Mr Griffiths relied on an expert microbiologist report. The microbiologist stated that, in his opinion and on the balance of probabilities, Mr Griffiths’ gastroenteritis was caused by the food and drink he consumed at the hotel.
TUI also obtained permission to rely on expert evidence but did not serve any expert reports, nor did they require the expert to attend the trial for cross-examination. Instead, TUI put two questions to the expert under CPR PD 35.6, which he answered. Counsel for TUI then stated in the skeleton argument, filed the day before the trial, that the expert report was incomplete and bare ipse dixit (a term referring to where a bold assertion is made without any reasoning to support it).
At trial, counsel for TUI argued during their closing submissions that the report did not rule out, on the balance of probabilities, that there may have been other possible causes for Mr Griffith’s illness. The trial judge was persuaded by this argument, and dismissed Mr Griffiths’ claim.
Decision of High Court
Martin J allowed the Claimant’s appeal of the trial judge’s decision. This was on the basis that, as the expert report was uncontroverted, meaning that it had not been challenged, the court only had to decide on whether the report met two minimum standards required of all expert reports:
- The report is not bare ipse dixit; and
- The report complies with CPR PD 35.
It was held that the expert report did meet the above minimum standards, and Mr Griffiths was awarded with £29,000 in damages.
Decision of Court of Appeal
By a majority decision, with Bean LJ dissenting, the Court of Appeal overturned the High Court decision.
Asplin J stated that there is no precedent to support the idea that an expert report which is uncontroverted and complies with CPR PD 35 cannot be examined, and ultimately rejected, by the court. It was argued that there is nothing inherently unfair in challenging expert evidence in counsel’s closing submissions, without having to cross examine the expert or submit contradictory expert evidence.
Bean LJ “profoundly” disagreed with this view, stating that the Claimant did not have a fair trial and that the courts should not allow “litigation by ambush”.
Decision of Supreme Court
The Supreme Court unanimously overturned the Court of Appeal decision, with Lord Hodge leading the judgement. Lord Hodge stated that the trial judge and Court of Appeal had erred in law and that the trial judge had acted unfairly when rejecting the expert report without providing him with the opportunity to explain his reasoning. It was held that, although the expert report did leave questions unanswered and there was room for explanation, it was far from bare ipse dixit.
Quoting Browne v Dunn, it was held that, in general, a party must challenge witness evidence during cross-examination on the aspect of the evidence subject to criticism if they wish to submit that that part of the evidence should not be accepted by the court. It was submitted that this is a matter of upholding the fairness of legal proceedings as a whole. This is because it provides the expert or witness to explain or clarify their evidence. In this case, the CPR PD 35 questions submitted to the expert did not correlate with the issues raised during counsel’s closing submissions, and therefore did not provide the expert with the opportunity to clarify that aspect of his report. As such, the Claimant did not have a fair trial.
It was held that this rule should not be applied rigidly, and that there are seven exceptions to the rule. These exceptions are as follows:
- where the challenge was directed at a collateral or insignificant matter;
- where the evidence is manifestly incredible and the opportunity to explain it would not make a difference;
- where a bold assertion is made in an expert’s report without any reasoning to support it (the report is bare ipse dixit);
- where an obvious mistake has been made;
- where the witness’ evidence of facts are contrary to the basis on which the expert expressed their opinion in the expert report;
- where an expert has been given a sufficient opportunity to respond to criticism or otherwise clarify their report; and
- where there has been a failure to comply with the requirements of CPR PD 35.
However, it was held that the above exceptions did not apply to this case.
Further to the above, Lord Hodge concluded that, on the balance of probabilities, Mr Griffiths had established his case, and upheld the High Court’s order, awarding Mr Griffiths £29,000 in damages.
Key takeaways
The Supreme Court held that the trial judge had acted unfairly by rejecting the expert’s evidence without the expert being challenged during cross-examination or by contradictory evidence. In doing so the, the court clarified the principles surrounding challenging expert evidence.
Following this decision, the general rule is that a party must challenge evidence, being either witness or expert evidence, during cross-examination or by submitting their own evidence, if they wish to submit to the court that the evidence should not be accepted. There are very limited circumstances where this will not be the case.
Further to the above, the decision has two important takeaways:
- parties to legal proceedings should think twice before choosing not to oppose another party’s witness or expert evidence; and
- ensuring fairness during legal proceedings is of the utmost importance.
If you would like any more information, or have any potential issues or disputes, please get in touch with Acuity Law.
