ISSUE 53 Expert Witness Journal - Journal - Page 10
but also considered that a judge was generally bound
to accept the evidence of an expert if it is not controverted by other expert or factual evidence and the opposing party could have cross-examined the expert
on the point but chose for tactical reasons not to do
so. There might be exceptions where there is, for example, an obvious mistake on the face of the report,
but this case was not exceptional.
5. where the factual evidence is contrary to the factual
basis on which an expert premised his or her view
6. where an expert has been given sufficient opportunity to respond to criticism or otherwise clarify the
report (eg via Part 35 questions)
7. where there has been a failure to comply with the requirements of CPR Part 35 and Practice Direction 35
The Supreme Court’s Decision
The Supreme Court has unanimously allowed Mr
Griffiths’s appeal, holding that HHJ Truman was
wrong to allow TUI to make detailed criticisms of Professor Pennington’s report and to accept those submissions. In doing so, Mr Griffiths had been denied a
fair trial of his claim.
In applying those principles (ie in applying the general rule without any of the exceptions), the Supreme
Court held that the law of evidence and fairness required that Professor Pennington be given the opportunity to respond to TUI’s criticisms. Having
elected not to challenge Professor Pennington in crossexamination or by adducing its own expert report,
TUI had precluded itself from raising those criticisms
in closing submissions.
Lord Hodge, writing the judgment of the Court, accepted the formulation proposed by Bean LJ of the
general rule in civil cases that a party must challenge
in cross-examination the evidence of any lay or expert
witness of the opposing party on a material point
which he or she claims should not be accepted. Lord
Hodge explained that the requirement was not a rigid
one and provides seven instances in which the requirement may be relaxed. Those are:
1. where the matter challenged is collateral or
insignificant
2. where the factual evidence is manifestly incredible
3. where a bold assertion is made in an expert report
without any reasoning to support it (“bare ipse dixit”)
The Supreme Court held accordingly that HHJ
Truman had denied Mr Griffiths a fair trial. Having
set aside HHJ Truman’s order, the Supreme Court
considered the issues afresh and concluded, relying
on her other findings of fact, that Mr Griffith has established, on the balance of probabilities, that the food
and drink at the hotel had caused his gastric illness.
This decision will have profound ramifications for
holiday sickness claims, personal injury and civil litigation generally. This article provides a summary of,
the Supreme Court’s decision but this author suspects
that there will be considerably more reaction, analysis
and commentary on this important topic in future.
4. where there is an obvious mistake on the face of an
expert report
This article was first published on 12KBW’s
International and Travel Law blog
(https://internationalandtravellawblog.com/) and is
reproduced with the permission of the author.
Expert Witness Resource for Medical, Psychiatric, Psychological,
Scientific, Technical & General Expert Witnesses for all courts and
tribunals including criminal, family, historic, military, personal
injury, medical negligence, inquests and appeal cases.
Forensic Healthcare Services Ltd
Old Moor Office, Southminster, Essex, CM0 7DT
Tel: 01621 773428
Email: office@forensic-healthcare.com
Web: www.forensic-healthcare.com - www.fhcformediation.com
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