PI Brief Update

Griffiths v TUI UK Limited [2020] EWHC 2268 (QB): The Court may not depart from uncontroverted expert evidence - Sam Way, Devereux Chambers

24/09/20. In a judgment which will have wide-ranging implications across lower value personal injury claims, Martin Spencer J has confirmed that where a court is presented with uncontroverted expert evidence which complies with the requirements for admissibility under CPR Part 35, the Court cannot depart from that evidence. Although the judgment does not break new ground, it provides valuable resistance against arguments aimed at undermining expert evidence which often find favour with District Judges.

Background

The Claimant purchased an all-inclusive holiday to a holiday in Turkey. Save for a burger eaten at the airport and a single meal out, he ate all of his meals at the hotel provided by the Defendant. During the holiday he fell ill, suffering from stomach cramps and diarrhoea. A stool sample taken during the holiday showed both parasitic and viral pathogens.

In his claim, the Claimant did not commit to any particular cause of the illness, despite the medical report served with the Particulars of Claim opining that the cause was food, drink or fluids consumed at the hotel. The Claimant was put to proof as to the cause of his illness by the Defendant. Despite the Defendant obtaining permission to serve its own expert evidence in respect of causation, it did not obtain any expert evidence, not did the Defendant ask any Part 35 questions of the Claimant’s expert or require the Claimant’s expert to attend for cross-examination.

At trial, HHJ Truman accepted the Claimant’s factual evidence, but went on to endorse the Defendant’s criticisms of the expert’s report, including his reasoning and the basis on which he reached his opinion on causation. In the face of the Claimant’s expert evidence in support, HHJ Truman found that the Claimant had failed to prove his case on causation and dismissed the claim.

The decision

On appeal, Martin Spencer J noted that “where an expert’s opinion is disputed, that opinion will carry little weight if, on proper analysis, the opinion is little more than assertion on the part of the expert.” (paragraph 29). However, the Claimant’s expert’s evidence was not dispute. It was therefore the only evidence before the Court on the issue of causation; the Defendant having failed to lead any evidence of its own on the topic and having failed to undermine the factual basis on which the report was made. Martin Spencer J drew a distinction between the analysis to which an expert report could be subjected to depending on whether it was in dispute or is uncontroverted: “what the court is not entitled to do, where an expert report is uncontroverted, is subject the report to the same kind of analysis and critique as if it were evaluation a controverted or contested report, where it had to decide the weight of the report in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual evidence. Once a report is truly uncontroverted, the role of the court falls away.” (paragraph 33)

This did not, however, mean that the Court was always barred from analysing the content of an expert report where there was no competing evidence. Even an uncontroverted expert report must meet the minimum standards for admissibility set out in the Practice Direction to CPR Part 35. Those criteria determine whether the expert’s report is acceptable to be admitted in evidence. But once it has been admitted, the court is not called on to evaluate the weight to be attached to the report unless there is some competing evidence or the basis on which the report has been reached has been undermined. As the Defendant had not led its own evidence on causation, and HHJ Truman had accepted the Claimant’s factual case, he was not entitled to effectively ascribe “nil weight” to the report (paragraph 37). By doing so HHJ Truman had erred.

Further, a report may nonetheless be rejected if it constituted a bare ipse dixit, i.e. that it merely states an entirely unsubstantiated conclusion. The expert report in this case, was not a bare, unsupported opinion (although that did not mean that the reasoning was not subject to justified criticism), and Martin Spencer J doubted whether any report which complies with the Practice Direction to CPR Part 35 could constitute a bare ipse dixit such that it could be properly ascribed no weight.

Comment

Although this case concerned expert evidence on causation of gastric illness suffered on a package holiday (a subject which is notoriously difficult to prove), Martin Spencer J’s comments are of universal application. Defendants often consider that it is disproportionate to obtain their own expert evidence on a topic, particularly in low value disputes, and instead seek to undermine the Claimant’s expert evidence. This judgment clarifies that such a strategy is a high-risk approach. Unless a Defendant successfully undermines the factual basis on which the report was reached, it will not be open to the Court to depart from the Claimant’s expert’s view. In expressing the limits of running a case which relies on the Court rejecting the Claimant’s evidence, Martin Spencer J has provided Claimants, particularly those involved in low value disputes, with a vital tool.

SAM WAY
Devereux
14 September 2020

Image ©iStockphoto.com/Elerium