Will Controverting Evidence Result in Higher Costs and Fraud?
Legal Development 29 November 2023 29 November 2023
The Supreme Court has today handed down judgment in the case of TUI Ltd v Griffiths, providing a final determination on whether, and if so in what circumstances, the court can evaluate and reject an ‘uncontroverted’ expert report.
Mr Griffiths became unwell whilst on an all-inclusive holiday in Turkey in August 2014, that had been booked with TUI. He was admitted to hospital and diagnosed with acute gastroenteritis with a stool sample testing positive for parasitic and viral pathogens. Mr Griffiths relied on expert evidence from a Gastroenterologist, Dr Linzi Thomas and Microbiologist, Professor Pennington; TUI had permission to obtain its own evidence but chose not to do so. The only expert evidence in relation to causation before the court was Professor Pennington’s report. TUI made submissions criticising the expert evidence at trial.
At first instance, the District Judge accepted the evidence of Mr Griffiths and found he had been ill as described; however, the report of Professor Pennington was described as ‘minimalist’ comprising of only 4 paragraphs. The Judge found that the reports of Dr Thomas and Professor Pennington did not satisfy the requirements specified in Wood v TUI and did not comply with CPR Part 35; the claim was therefore dismissed. The Judge pointed out the burden of proof was on Mr Griffiths, and it was “open to a Defendant to sit back and do nothing save make submissions, and if the evidence is not sufficient to satisfy a court on the balance of probabilities, a claim will not succeed”.
High Court - Appeal 1
The Claimant appealed on the basis the Judge had erred in rejecting Professor Pennington’s evidence in the absence of any evidence challenging or contradicting it. The High Court found that where an expert report is uncontroverted (not challenged or contradicted by witnesses of fact, documentary evidence, competing expert evidence or by cross-examination) the court is not entitled to subject it to the same analysis and critique as if it was evaluating a contested report; all the court needs to do is decide whether the report fulfils the minimum standards of Part 35. The High Court found Professor Pennington’s report did comply with Part 35 therefore the appeal was allowed, and Judgment was entered for Mr Griffiths.
Court of Appeal - Appeal 2
TUI appealed the High Court decision on the basis that the Judge had erred in law in holding that where an expert report is ‘uncontroverted’, the court is not entitled to evaluate the substance of the report. Allowing the appeal by majority, the Court of Appeal essentially held that there is no rule that a court is bound to accept uncontroverted expert evidence which complies with Part 35 and therefore the Judge “was entitled to conclude that Professor Pennington’s evidence was insufficient to satisfy the burden of proof on Mr Griffith in relation to causation for the cogent reasons she gave. It is not for this court to interfere, nor was the Judge right to do so.” The Court of Appeal found that TUI’s conduct did not amount to an unfair trial. However, Bean, LJ gave a strongly dissenting Judgement and stated that, “In my view Mr Griffiths did not have a fair trial of his claim. The courts should not allow litigation by ambush. I would therefore have dismissed TUI's appeal.”
Supreme Court Judgment - Appeal 3
The Supreme Court has overwhelming agreed with Bean LJ in the Court of Appeal and allowed the appeal, entering Judgment for Mr Griffiths; a copy of the Judgment can be found here.
The Supreme Court considered the appeal raised an important question about the fairness of a trial where a party relies on expert evidence and the opposing party does not challenge that evidence on cross-examination but reserves it criticisms for submissions. It considered the trial Judge had been wrong to accept TUI’s submissions when they had failed to challenge the report by cross-examination.
The court held Mr Griffiths had proved his case on the balance of probabilities. Whilst Professor Pennington’s report was described as ‘terse’, ‘lacking in detail’ and ‘leaving many relevant questions unanswered’, his report and response to Part 35 questions were found to be sufficient to show that food and drink at the hotel had on the balance of probabilities caused the illness.
What does this mean now?
This decision means that where expert evidence is not controverted, that is, challenged by witnesses of fact, documentary evidence, competing expert evidence or by cross-examination of the expert at trial, the court is bound to accept the conclusions of the expert. The Supreme Court did clarify the circumstances in which this requirement may be relaxed to include the conclusion being merely a bald assertion completely unsupported by any reasoning or the evidence itself may be manifestly unbelievable.
In holiday sickness claims it may not be proportionate for hotel witnesses to give oral evidence at trial in person and not possible for them to give evidence by video link. This is something that was recognised by unscrupulous claims farmers giving rise to a significant increase in fraudulent holiday sickness claims entering the system. Part 18 and Part 35 questions are a staple of any fraud investigation into the legitimacy of a holiday sickness claim. This decision aligns the strategy and investigations to be conducted with regards to expert evidence, no matter whether the concerns are one of fraud or one of causation.
Part 35 questions will need to carefully focused and detailed, and consideration given to calling the opposing party’s expert to give oral evidence at trial in relation to specific issues. Whilst the Supreme Court expressed that this decision will not have adverse consequences for the cost-effective resolution of claims, in particular low value claims, additional steps to controvert evidence will inevitably lead to higher costs for defendants. Whilst the new fixed costs regime goes some way to providing some costs certainty, no doubt there will be many arguments over complexity, number of experts and length of trial to try to increase the costs available to claimants. This will inevitably play into the hands of claims farmers so vigilance will be required to ensure early fraud identification.
This decision is not limited to holiday sickness claims and will have far reaching implications for all cases where expert evidence is in use. Unless the expert evidence is agreed, it will be necessary to controvert it either by attacking the factual basis of the report or by providing competing evidence.
This insight was written by our Cross-border subject matter group, click here to learn more.