ISSUE 53 Expert Witness Journal - Journal - Page 9
Griffiths v TUI: Supreme Court
Unanimously Allows Appeal
The Supreme Court has handed down its long-awaited judgment in Griffiths v TUI [2023] UKSC
48, an appeal which directly concerns a Package Travel holiday sickness claim but which will also
indirectly affect all those who are involved in civil litigation, due to the wide ramifications of the
Court’s consideration of the issue of uncontroverted expert evidence. In this article, Peter Hale Barrister at 12 King’s Bench Walk considers the Supreme Court’s decision to overturn the decision of the
majority of the Court of Appeal.
evidence in closing submissions. It may be a high risk
strategy to choose neither to adduce contrary evidence nor to seek to cross-examine the expert but
there is nothing impermissible about it. […] The defendant is entitled to submit that the case or an essential aspect of it has not been proved to the requisite
standard. He cannot be prevented from doing so because some of the evidence is contained in an uncontroverted expert’s report. Furthermore, he cannot be
required to file his own contrary expert’s evidence in
order to enable the court to weigh the evidence.”
Background to the appeal
Mr Griffiths brought a holiday sickness claim against
TUI under the Package Travel, Package Holidays and
Package Tours Regulations 1992 and in breach of contract, alleging that he was the victim of gastric illness
(food poisoning) as a result of consuming contaminated food or drink in the hotel supplied as part of
his package holiday.
At trial, Mr Griffiths relied on the expert evidence of
a microbiologist (Professor Pennington) in relation to
causation, who gave the expert opinion that his illness
had been caused by food and drink consumed at the
hotel. TUI did not rely on any expert evidence. In the
County Court, HHJ Truman held that she was not
satisfied that Mr Griffiths’s expert evidence showed
that it was more likely than not that his illness had
been caused by eating food and drink at the hotel and
dismissed the claim.
TUI’s closing submissions at trial had been that
Professor Pennington’s report was “insufficient to enable Mr Griffiths to prove on the balance of probabilities that his illness had been caused by contaminated
food or drink at the hotel. […] it was not being suggested that the report was necessarily wrong in any
way – just that it did not enable Mr Griffiths to satisfy
the burden of proof as to causation.”
On appeal to the High Court (Martin Spencer J), the
issue was whether HHJ Truman had erred in rejecting Professor Pennington’s expert evidence in the absence of any evidence challenging or contradicting his
conclusion. Martin Spencer J described the report as
“truly uncontroverted” (ie not challenged by any opposing expert report or other evidence). In allowing
Mr Griffiths’s appeal, Martin Spencer J held that “a
court would always be entitled to reject a report, even
where uncontroverted, which was, literally, a bare ipse
dixit” but that the Court is not entitled, where an expert report is uncontroverted, to subject that report
to the same kind of analysis and critique as if it was
evaluating a controverted or contested report where
it had to decide which report to prefer over any
expert report or any other controverting evidence.
In respect of TUI’s submissions at trial, Asplin LJ held
that “As part of a fair trial, it seems to me that it was essential that Judge Truman engaged with those submissions and determined whether causation had been
proved to the requisite standard. She did so quite
rightly and determined that question on the evidence
before her. She had cogent reasons for deciding that
the burden of proof in relation to causation had not
been satisfied and rejected Professor Pennington’s report accordingly. Her reasoning was set out at [18] –
[22] of her judgment. She did not decide that the Professor was wrong, just that his report was insufficient
to satisfy the burden in relation to causation. It is
not for us, nor was it for the Judge to overturn her
evaluative judgment in that regard.”
The Court of Appeal therefore set aside the Order of
Martin Spencer J and restored the Order of HHJ
Truman. However, a strong dissenting opinion from
Bean LJ set the scene for the present appeal. Bean LJ
concluded that it was a fundamental part of the English law of evidence that a party was required to challenge in cross-examination the evidence of any witness
of the opposing party if he wishes to submit to the
court that the evidence should not be accepted.
The Court of Appeal
The majority of the Court of Appeal (Asplin LJ, with
whom Nugee LJ agreed) overturned the decision of
Martin Spencer J, reinstating the decision of HHJ
Truman. Asplin LJ held that she “[did] not consider
that there is a strict rule that prevents the court from
considering the content of an expert’s report which is
CPR-compliant, where it has not been challenged by
way of contrary evidence and where there is no crossexamination.”
Bean LJ considered that Martin Spencer J had been
wrong to hold that a judge is effectively bound to accept the evidence of an expert if it is not controverted
Asplin LJ concluded that there was “nothing which is
inherently unfair in seeking to challenge expert
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