Rejecting an Uncontroverted Expert’s Report
In an excoriating dissenting Court of Appeal judgment, Bean LJ profoundly disagreed with his colleagues’ decision to allow the Defendant’s appeal: Peter Griffiths v TUI (UK) Limited [2021] EWCA Civ 1442 – Bean LJ, Lady Justice Asplin, Nugee LJ.
The Claimant suffered a serious gastric illness whilst on holiday and claimed against the Defendant. At first instance Judge Truman dismissed the claim on the basis that she was not satisfied that the medical evidence showed that, on the balance of probabilities, the illness was caused by contaminated food or drink supplied by the hotel.
In the first appeal, Spencer J set aside the order, leading to a second appeal. The question raised was whether and if so, in what circumstances, the court could evaluate and reject what was described as an “uncontroverted” expert’s report.
Lady Justice Asplin stated at the outset that, in her judgment, the authorities did not support what she described as “the bright line approach” adopted by the judge. There was no rule that an expert’s report which was uncontroverted and which complied with CPR PD 35 could not be impugned in submissions and ultimately rejected by the judge.
It all depended upon the nature of the report itself and the purpose for which it was being used in the claim.
The closing submissions were to the effect that the expert’s report was insufficient to enable the claimant to prove on the balance of probabilities that his illness had been caused by contaminated food or drink at the hotel. It was not suggested that the report was necessarily wrong but it did not satisfy the burden of proof as to causation.
It was not for this court to interfere and neither was Spencer J right to do so.
Agreeing that the appeal should be allowed, Nugee LJ considered that as a basic principle it was for trial judges to evaluate all the evidence before them in reaching their conclusions on the factual issues.
He saw nothing in the authorities that suggested that that obligation to assess the evidence fell away if it was “uncontroverted”; it still had to be assessed to see what assistance could be derived from it. It may be compelling, but it may not be; it may be inherently weak or unhelpful or of little weight for other reasons.
Dissenting, Bean LJ cited Phipson on Evidence: “In general, a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases as it does in criminal. In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”
Throughout Bean LJ’s 28 years as a practising barrister that proposition would have been regarded as so obvious as not to require the citation of authority. The court had certainly not been shown any authority to the contrary.
The claimant must be wondering what he did wrong, added Bean LJ. He instructed a leading firm of personal injury solicitors who, in turn, instructed an eminent microbiologist whose integrity had not been questioned. The claimant and his wife were found to be entirely honest witnesses. The expert’s opinion was that the illness was caused by the consumption of contaminated food or fluid supplied by the hotel. No contrary evidence was disclosed or called and the expert was not cross-examined. Yet the claimant lost his case.
Bean LJ profoundly disagreed with the view of his colleagues that a party may reserve its criticisms of a report until closing submissions if he chose to do so. In his view, the claimant did not have a fair trial of his claim. The courts should not allow litigation by ambush and Bean LJ would have dismissed the appeal.