Griffiths v TUI – A controversy over expert evidence at the Cross Border Law Conference

Ian Denham and Carin Hunt talked about the recent influential High Court judgment in Griffiths v TUI at Outer Temple’s Cross Border Law Conference. They analysed the judgment and considered the effects it may have on illness claims and beyond. Watch the video.

Outer Temple’s Annual Cross Border Law Conference was held via Zoom this year and an in-depth analysis of Griffiths v TUI [2020] 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.

The story of Griffiths v TUI

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:

1. The Claimant’s factual account relied upon by the expert was accepted by the judge at first instance (who found him and his wife to be credible witnesses);
2. The Defendant did not obtain their own expert evidence (despite having permission to do so); and
3. The Claimant’s microbiology expert was not called to be cross-examined by the Defendant.

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 [2016] UKSC 6 and Coopers Payen Limited v Southampton Container Terminal Limited [2004] 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.

What could have been done differently?

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:

1. It does not deal with a scenario where expert evidence is partially controverted.
2. Judges may have difficulty in surrendering their ability to scrutinise expert evidence as they would do otherwise.
3. The emphasis placed on Coopers Payen was possibly misplaced since that case involved a single joint expert, rather than an expert instructed by one party alone.
4. It appears to be contrary to the burden of proof to require a defendant to controvert a claimant’s expert evidence where there are deficiencies and doing so would merely allow an opportunity for remedying them. The burden rests on a claimant to present sufficient evidence to establish causation but this decision places a requirement on a defendant to be more direct in terms of challenging factual basis or the expert evidence.
5. There are potential implications for case management and expert evidence going forward. Though Griffiths was a Multi Track case, it is possible that the judgment will result in courts allowing both parties in Fast Track cases to get their own expert evidence and may be more likely to allow applications for expert witnesses to be cross examined. Ian hypothesised that in order to avoid such issues, whilst maintaining proportionality, this may cause some judges to impose single joint experts on parties.

Ian summarised the following outstanding questions:

1. What amounts to controverted evidence?
2. Will expert evidence be unconverted if just the factual basis of the claim is challenged?
3. Is it limited to factual evidence or are conclusions open to analysis?
4. Can Griffiths be distinguished as only applying to the Multi Track rather than Fast Track?
5. Can it be distinguished as inconsistent with the cases of Kennedy and Pora?
6. Did Spencer J consider the implications on Fast Track litigation and the expansion of expert evidence?
7. Do experts have the capacity to attend for cross examination in each trial?

Watch the talk on Griffiths v TUI

About the presenters

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

About the author

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.

Webinars & Recordings 17 Dec, 2020