ISSUE 54 EWJ web - Journal - Page 8
UK Supreme Court Ruling
Clarifies Fair Treatment of
Expert Evidence at Trial
by Nicola Seymour, Senior Associate - www.pinsentmasons.com
A decision by the UK Supreme Court has made it clear that the principle of fairness in relation
to expert evidence means a party should not entirely reserve its criticisms of an expert’s evidence
for closing submissions.
A particular emphasis of the Supreme Court ruling,
according to Seymour, is that where the evidence addressed an issue that is fundamental to a claim, such
as causation in this instance, a party is not able to wait
until closing submissions to assert that the evidence is
insufficient to discharge the burden of proof, especially in circumstances where a party had opportunities to challenge the evidence throughout the
proceedings and trial.
The case concerned the fair treatment of expert
evidence in civil proceedings, where the expert report
is not challenged whether in writing, via a counter expert report or in cross-examination, and provides important clarifications for parties in litigation. Litigation
expert Nicola Seymour of Pinsent Masons said that it
is particularly relevant in low value cases where defendants may be seeking to save costs by not adducing
their own expert evidence nor calling for the
claimant’s expert to be cross-examined at trial.
Another significant implication of the judgment is that
it provides several scenarios in which a party may not
be required to challenge the evidence of the opposing party via cross-examination in order to submit that
such evidence should not be accepted.
“The judgment strongly demonstrates that a party is
not able to sit back and reserve its criticisms of the
expert’s evidence for closing submissions, by which
time the expert would be denied the opportunity to
respond,” said Seymour.
“This will serve as useful guidance for practitioners
when determining the strategy of a case and also for
those instructing experts to ensure that the final report and response to written questions does not fall
foul of any such scenarios,” said Seymour.
“The principle of fairness requires experts be given
the chance to face and address challenges to their evidence. This does not necessarily need to be an expensive or drawn-out process requiring a counter
expert to be instructed and report produced with all
experts giving evidence at trial; specific written questions could serve this purpose, or focussed cross-examination at trial,” she explained.
One potential scenario referred to in the judgment
was if an expert has been given a reasonable chance to
respond to any challenges or criticisms of their report
- for example, by way of focussed CPR 35.6 questions
by opponents - and failed to provide a satisfactory
response.
The underlying dispute in the case was between tour
operator TUI and its customer, Mr Griffiths, who fell
sick during his all-inclusive holiday provided by the
company. Griffiths sued TUI for breach of contract
and relied on expert evidence to prove the cause of his
sickness. TUI did not file its own expert evidence or
seek to cross-examine the Griffiths’ expert witness at
trial, but criticised the expert report as poorly reasoned and unreliable in closing submissions. Griffiths
lost in the initial trial, with the judge siding with TUI
and deciding that he did not meet the civil standard of
proof as the expert’s evidence was unsatisfactory.
The judgment has also clarified that the rule is not
rigid in this respect, and every case will be assessed by
the individual facts and circumstances. “So if it would
be disproportionate for cross-examination to take
place, this should be borne in mind when applying
the rule,” said Seymour.
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Griffiths appealed and the High Court overturned the
trial judge. TUI appealed again, resulting in the
Court of Appeal (COA) with a 2-1 majority restoring
the trial judge’s ruling. On 29 November, the
Supreme Court unanimously rejected the COA’s ruling, confirming that Griffiths did not have a fair trial
because “a judge is 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.”
EXPERT WITNESS JOURNAL
6
APRIL 2024