ISSUE 54 EWJ web - Journal - Page 27
Supreme Court Holds That
Courts Must Generally Accept
Uncontroverted Evidence
By Greg Rouse, Senior Associate at Norton Rose Fulbright
In TUI UK Ltd (Respondent) v Griffiths (Appellant) [2023] UKSC 48 the Supreme Court reaffirmed the general rule of evidence that a party who
submits to the court that the opposing party’s witness
evidence should not be accepted on a material point
must firstly challenge that evidence by cross-examination during the trial, and cannot only raise the point
during closing submissions. The purpose of this rule,
as outlined in Browne v Dunn, is to ensure a fair trial
by giving the witness an opportunity to respond to the
challenge that their evidence is not accepted.
ical issues was the food and drink served at the hotel.
TUI did not cross-examine the Claimant’s expert at
trial and did not provide any expert evidence of its
own to oppose the Claimant’s expert. The evidence
of the Claimant’s expert was therefore ‘uncontroverted’ in the sense that it was not in conflict with any
other evidence led at trial and was not subjected to
challenge by cross-examination. In closing submissions TUI challenged the expert evidence and persuaded the trial judge that deficiencies in the expert
report meant the Claimant had failed to prove his
case.
Background
The Claimant commenced proceedings against the
defendant travel company, TUI, after he claimed to
have suffered serious stomach upset during a package holiday to Turkey. At trial, the Claimant gave uncontested evidence about him almost exclusively
consuming food and drink from the hotel at which he
had been lodged. The Claimant also relied on an expert medical report which opined that, on the balance
of probabilities, the likely cause of the Claimant’s med-
Mr Mamdouh Shoukrey
Challenging evidence under cross-examination
Following a series of overturned decisions in the lower
appellate courts, the Supreme Court reviewed the
previous authorities on evidence and reaffirmed the
general rule, first established by the House of Lords
in Browne v Dunn (1893): if a party seeks to challenge the evidence of a witness for the opposing party,
whether expert or factual, then this should be done
through cross-examination in order to achieve a fair
MBBCh FRCOG MSc
Consultant Obstetrician and Gynaecologist
Medico-Legal Expert Witness In Obstetrics & Gynaecology
Mr Mamdouh Shoukrey is a Consultant Obstetrician and Gynaecologist at Dorset County Hospital NHS Foundation
Trust, a position he has held since 2011. He has been practising obstetrics and gynaecology for over 25 years since his
qualification and holds a Master’s Degree in Advanced Gynaecological Endoscopy from the University of Surrey.
At Dorset County Hospital he is the lead clinician for Minimal Access Gynaecological (keyhole) Surgery. Whilst there he
has introduced new surgical procedures including Total Laparoscopic Hysterectomy and Laparoscopic Resection of
Endometriosis. He routinely performs general gynaecological surgical procedures including abdominal and vaginal
surgery. He also manages complex pregnancy, postnatal problems and childbirth including caesarean sections and
instrumental deliveries.
In his role as Obstetric Risk Management lead consultant at Dorset County Hospital, Mr.Shoukrey investigates clinical
risks and medical malpractice including root cause analysis of serious untoward incidents, and child death reviews.
He has also provided oral evidence in a coroner’s court. He holds
the Cardiff University Bond Solon (CUBS) Expert
Witness Certificate in Civil Law.
Mr Shoukrey has first-hand experience of dealings within the legal sector. He is able to quickly assess the roots of any line
of legal questioning and formulate strong and appropriate responses.
Turnaround time is 4 weeks for producing a CPR-compliant full medico-legal report. He offers an initial free 15 minute
lawyer consultation.
Mr Shoukrey teaches at the Royal College of Obstetricians and Gynaecologists including training doctors in laparoscopic/
hysteroscopic skills and emergency obstetrics including instrumental deliveries and shoulder dystocia, and is a Royal
College examiner. He has presented scientific research papers at both national and international meetings, and has
published articles in scientific journals in the field of minimal access surgery.
Contact: Tel: 07793 458363
Email: shoukrey@mnsmedical.co.uk - Website: www.mnsmedical.co.uk
Address: Dorest County Hospital, Williams Ave, Dorchester, DT1 2JY
Area of work: Nationwide
EXPERT WITNESS JOURNAL
25
APRIL 2024