What is the role of the court where expert evidence is “uncontroverted”, but appears not to prove the claimant’s case to the requisite standard? The Court of Appeal had to contend with that issue recently in Griffiths v TUI, a claim for statutory compensation following the claimant’s illness, allegedly caused by contaminated food at his hotel in Turkey. The judgment shows how finely balanced the law is on this point, and has attracted considerable interest from litigation practitioners because of the wider questions it raises.
The Claimant had the burden of proving on the balance of probabilities that his illness was caused by contaminated food served to him in his hotel. He relied upon a report authored by a Professor Pennington, a Gastroenterologist. The Defendant failed to serve any expert evidence at all, and did not cross-examine the Claimant’s witness. At first instance, Her Honour Judge Truman held that Professor Pennington’s report did not amount to proof of causation, and that the Claimant’s case had not been proved to the requisite standard. The Claimant appealed successfully before Mr Justice Mark Spencer, on the basis that the expert report had not been challenged, was the only expert evidence before the Court, and therefore should be accepted.
In a further appeal by the Defendant to the Court of Appeal the court was split between a majority judgment of Lady Justice Asplin (Lord Justice Nugee agreeing) and a strongly dissenting judgment of Lord Justice Bean. The contrasting reasoning displays a tension between procedural fairness and the requirement to discharge the burden of proof irrespective of lack of challenges mounted by a defendant. Permission to appeal to the Supreme Court was refused but it is understood that the Claimant will seek permission directly from the Supreme Court itself.
The majority took the view that the Court is obliged to do more than simply accept the conclusions in an uncontroverted expert report, notwithstanding the report’s compliance with CPR PD 35. They adopted the view that all the circumstances of the case had to be taken into account, and that the trial judge had done so, and appropriately decided that the claimant had not discharged their burden of proof.
Lady Justice Asplin said, at : “I can see nothing which is inherently unfair in seeking to challenge expert evidence in closing submissions. It may be a high risk strategy to choose neither to adduce contrary evidence nor to seek to cross-examine the expert but there is nothing impermissible about it……..As Judge Truman stated, the court is not a rubber stamp.” And determined at : “I consider that Judge Truman was entitled to conclude that Professor Pennington's evidence was insufficient to satisfy the burden of proof on Mr Griffiths in relation to causation for the cogent reasons she gave.”
Lord Justice Bean, however, was more concerned with the procedural fairness aspect of the proceedings, and concluded that Courts should not allow “litigation by ambush”. At : “I do consider that a judge is generally bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence and the opposing party could have cross-examined the expert on the point but chose for tactical reasons not to do so.”
The majority and dissenting judgments demonstrate a distinct divergence in approach. The majority has viewed the case through the lens of the burden of proof, and the Court’s role in ensuring it is discharged before finding in favour of a claimant. This conceptualisation requires the Court to take a more active, even inquisitorial, role in circumstances where a defence is best described as passive.
In stark dissent, Lord Justice Bean put the responsibility for ensuring the burden of proof is discharged on opposing counsel, rather than the Court itself. His view necessitates that counsel follow procedure and test evidence appropriately, rather than challenge in closing submissions, and deny the other party the right to reply.
The Defendant’s decision in this case not to challenge the expert evidence until closing submissions was unusual, although one can see why defendant holiday operators –facing a growing case-load of holiday sickness claims- may take strategic and costs decisions on how far to challenge or criticise imperfect claimant expert evidence. Nevertheless the case has raised fundamental questions about the respective roles of opposing counsel and the judiciary when expert evidence –in any field- is evaluated. Water-cooler conversations about the case have already revealed that practitioners too are split on the point.
This will be a case for all litigators to watch if it should reach the Supreme Court, but for the time being the majority decision of the Court of Appeal will refocus practitioners on the need to ensure that any evidence meets the burden of proof.