The Court of Appeal yesterday handed down judgment in the case of Griffiths v TUI (UK) Limited [2021] EWCA Civ 1442 (CA), in what stands to be an important decision for defendants.
THE JUDGMENT
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 CPR PD 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." [78]. A link to the
judgment can be found here.
The Court considered both previous decisions from first instance
and appeal. At first instance, the Judge concluded that the
microbiology evidence provided in support of the claim did not
sufficiently show that Mr Griffiths' illness was caused by
contaminated food or drink supplied by the hotel and did not
satisfy the requirements set out in Wood v Tui. Mr
Griffiths succeeded on appeal, with the Judge considering that the
microbiology evidence was "uncontroverted".
Lady Justice Asplin noted in her decision that "There
is no rule that an expert's report which is uncontroverted and
which complies with CPR PD 35 cannot be impugned in submissions and
ultimately rejected by the judge. It all depends upon all of the
circumstances of the case, the nature of the report itself and the
purpose for which it is being used in the claim." [40].
Asplin LJ went on to state that in her judgment, Judge Truman at
first instance did not decide that the report was 'wrong'
in the sense of rejecting his conclusions but that it was simply
insufficient to prove causation [51] and that the authorities
quoted referred mainly to credibility issues of the medical expert,
which were again not in issue.
In support, Lord Justice Nugee, agreed that the appeal should be
allowed and stated that "I see nothing in the authorities
that suggests that that obligation to assess the evidence falls
away if it is "uncontroverted"; uncontroverted evidence
still has to be assessed to see what assistance can be derived from
it, viewed in the context of the circumstances of the case as a
whole. Uncontroverted evidence may be compelling, but it may not
be: it may be inherently weak or unhelpful or of little weight for
other reasons". [81].
FACTUAL BACKGROUND
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.
WHAT DOES THIS MEAN NOW?
This is a positive outcome for defendants confirming that there will no longer be a requirement to "controvert" a claimant's evidence, and it will once again be open to them to challenge an expert's report at trial, without obtaining its own evidence.
The Court of Appeal refused permission for Mr Griffiths to appeal to the Supreme Court. However, given the dissenting comments of Lord Justice Bean's stating 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." [99], this should be taken with a note of caution and may result in permission still being granted hereafter.
Originally published 08 Oct 2021 .
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