Insights / News
Insights / News
Outer Temple’s Annual Cross Border Law Conference was held via Zoom this year and an in-depth analysis of Griffiths v TUI  EWHC 2268 (QB) was on the agenda.
The event was attended by lawyers around the world including fellow Outer Temple member Imogen Egan who summarizes the talk below before the opportunity to watch the full recording of the talk.
Carin dealt with the facts, procedural history, and outcome in Griffiths. The judgment in Griffiths arises out of a holiday sickness claim where the Claimant had obtained expert microbiology evidence in support of his Claim, which was “uncontroverted” in that:
There were, however, serious deficiencies in the Claimant’s microbiology evidence – Carin set these out in detail. The deficiencies included the length of the report (being just two pages long), and a lack of reasoning to support the view that two meals not eaten at the hotel should be discounted as potential sources of transmission (with reference to incubation periods).
The trial judge was not satisfied that the evidence of the Claimant’s microbiologist showed on the balance of probabilities that the Claimant’s illness was caused by ingesting contaminated food or drink supplied by the hotel and noted that “[t]he court is not a rubber stamp to just accept what someone has said…it is incumbent on the medical experts to provide some reasoning for their conclusions” (para 28).
The Claimant appealed to the High Court. As Carin explained, the key issue in the appeal was: “What is the correct approach to ‘uncontroverted’ expert evidence?”. The Court were directed to and considered the cases of Kennedy v Cordia  UKSC 6 and Coopers Payen Limited v Southampton Container Terminal Limited  Lloyds Rep 331.
The High Court allowed the appeal (judgment by Spencer J) and held that if you have expert evidence which is more than mere assertion, uncontroverted, and meets minimum standard in CPR PD 35 (which does require reasons for conclusions) then the question of weight does not arise, and the court is not entitled to subject it to the same analysis and critique as if it were controverted.
Ian considered what both sides could have done differently in this case. The Claimant should have addressed the obvious shortcomings in the microbiology report because the challenges made by the Defendant were not novel or unexpected. However, there was a catalogue of errors made by the Defendant in the litigation. They had the opportunity to get their own expert evidence and they might have challenged the factual basis of the report more forcefully. The ultimate tactical error, however, might be letting the case go to appeal, which allowed the Wood v Tui position on expert evidence to be diminished.
The ramifications of Griffiths go beyond holiday sickness claims and personal injury claims. It affects all cases involving expert evidence under Part 35 but Ian predicted that these implications will be felt most keenly on the Fast Track because there is greater restriction on expert evidence. Judges are far less likely to allow permission for both parties to obtain their own expert evidence and often expect the Defendant to ask Part 35 questions of a Claimant’s expert.
Ian also foresaw that international injury claims will be particularly affected because there tends to be a greater requirement for expert evidence in such claims e.g. local standards evidence, evidence re: adherence to standards, and medical causation reports.
Ian identified some key issues with the judgment:
Ian summarised the following outstanding questions:
Ian Denham is a leading personal injury practitioner with a particular expertise in matters involving serious and catastrophic injuries, wrongful deaths, clinical negligence and cross-border personal injury claims. He is regularly instructed on cases involving life changing and catastrophic injury receives regular instructions of a variety of clinical negligence matters.
Ian’s main area of specialism is cases with an international element. His cross-border practice covers advising on jurisdiction, applicable law, direct rights of action against insurers, claims against the MIB, accidents in the air and on sea, and claims involving a cross-border employment aspect. Ian has also advised on the potential implications arising from Brexi
Carin Hunt is keenly developing a cross-border element to her personal injury practice, and has drafted pleadings and appeared in court in respect of package travel claims, Odenbreit claims, and claims involving consumer contracts which the Brussels Recast Regulations apply. She also receives instructions in flight delay, Montreal Convention, and Athens Convention claims. Carin’s clinical negligence practice compliments her international injury work and she has recently advised in two cases involving medical treatment abroad.
Imogen Egan specialises in public law, PI, and clinical negligence disputes. She has represented parties in Road Traffic Accident claims, Occupiers Liability Act ‘tripping and slipping’ claims, and claims involving accidents/sickness abroad and on transport.
If you would like to discuss any of the issues covered in this article please contact Ian, Carin or Imogen directly or via their practice management team; Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.