How does the court deal with uncontroverted expert evidence?

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19 October 2021

This week I am considering the case of Griffiths v TUI (UK) Limited [2021] EWCA Civ 1442 (CA) which was handed down in the Court of Appeal on 7 October.

Earlier this year, in my post about the case of Oaklion Properties Ltd v Denbighshire County Council [2021], I explained that, when preparing for a trial with expert evidence, it is possible that the court (or in that case, the tribunal) may not accept all the evidence and arguments submitted by a the expert’s instructing party.  Therefore, it is important that the expert must consider the full range of view presented. In that post, I also summarised the key provisions of CPR PD 35 which are relevant here.

Griffiths v TUI (UK) Limited also examines that matter of expert evidence, but this time in the context of whether the court is bound to accept uncontroverted expert evidence. Griffiths v TUI (UK) Limited is an important decision for lawyers regularly instructing expert witnesses (and their clients).

Background

The claimant was claiming statutory compensation after suffering illness allegedly caused by contaminated food he had eaten at his hotel in Turkey during an all-inclusive holiday.  The claimant relied on an expert report from a gastroenterologist. The defendant did not submit any expert evidence and the defendant’s barrister did not cross examine the expert during the trial. Therefore, the expert’s evidence was uncontroverted.

First Instance Decision

The trial judge held that the claimant's expert’s report did not prove causation and, the claimant’s case was therefore unsuccessful. 

The Claimant’s Appeal

The claimant advanced an appeal on the basis that the expert report was the only expert report before the court and had not been challenged by the defendant, and so the report ought to be accepted by the court.  At the appeal hearing, the judge agreed with the claimant because the expert evidence was uncontroverted. 

The Court of Appeal’s Decision

The defendant submitted a further appeal to the Court of Appeal arguing that the judge is the lower court was wrong to hold that the court was not entitled to evaluate the substance of an uncontroverted expert report.

The appeal was successful by a majority decision.  The Court of Appeal concluded that there is no rule setting out that expert evidence which complies with CPR PD 35 and is uncontroverted cannot be rejected by the trial judge.  Whether or not such evidence ought to be accepted, or rejected, will depend on all of the circumstances of the case.

There is no “bright line” between controverted and uncontroverted expert evidence. In this case, the judge at first instance was entitled to concluded that the expert report did not satisfy the burden of proof in relation to causation.

Comment

Lord Justice Bean gave a dissenting judgment and held that the defendant’s counsel had the responsibility for ensuring that the burden of proof is discharged and not the court, making the point that the defendant could have cross-examined the expert on the point “but chose for tactical reasons not to do so.”

Given the comments made by Lord Justice Bean, it may be that the Court of Appeal’s judgment is not the last we see of this case and that the claimant could make a further appeal to the Supreme Court.

In any event, it is clear from the judgment that an expert must clearly explain the basis for his or her conclusions.  If the expert’s evidence is to be sufficient to assist in proving causation, some explanation of the expert’s reasoning supporting his or her conclusions is necessary, even if that explanation is only short. Any bald or unsupported assertions will be of little weight at trial.    

As I have stated previously, a comprehensive and clear letter of instruction will help to ensure that the expert understands his or her role and objectives.

© Melissa Worth October 2021

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