GRIFFITHS -V- TUI IN THE COURT OF APPEAL 3: THE CLAIMANT DID NOT HAVE A FAIR TRIAL: THE COURTS SHOULD NOT ALLOW LITIGATION BY AMBUSH: THE DISSENTING JUDGMENT

This is the third post about the Court of Appeal decision in   Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442.  Here we look at the dissenting judgment of Lord Justice Bean.  That judgment sets out, in clear and robust terms, the judge’s disagreement with the majority view.

 

 

WEBINAR ON EXPERT EVIDENCE: 20th OCTOBER 2021

This case, alongside a number of other recent cases on expert evidence, will be considered in the webinar “Expert Evidence – Understanding the Basics and Avoiding the Pitfall” on the 20th October 2021. Details of how to book are here. 

 

THE CASE

The claimant brought a case for damages for personal injury on the basis that he had suffered gastric illness whilst on holiday in Turkey. In support of his claim the claimant commissioned a report from Professor Pennington.  This was described as “short, indeed one could describe it as “minimalist”.   The report was admitted into evidence at the trial. The defendant put questions to the expert but did not call any evidence of their own, nor did they ask that the expert attend trial to be cross-examined.   The trial judge dismissed the claimant’s claim.   The claimant was found to be a totally honest witness, however the trial judge discounted the expert evidence and found that the claimant had not proven his claim.  This decision was overturned on appeal to the High Court judge, that decision was considered here. 

The High Court Judge found, in essence, that since the defendant did not call evidence to counter the expert’s evidence, and it was not challenged at trial (the report being admitted as evidence), it was not open to the trial judge to reject the conclusions of the expert report.  The defendant was successful in its appeal to the Court of Appeal, the majority in the Court finding that the trial judge was not bound to accept the claimant’s expert evidence, this is considered here. 

THE DISSENTING JUDGMENT OF LORD JUSTICE BEAN

Lord Justice Bean:
    1. As Judge Truman observed at paragraph [28] of her judgment, “it is trite law that the burden of proof is on the Claimant. It is 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 Claimant will not succeed”.
    1. But it is even more trite law that, as Phipson on Evidence puts it:
“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.” (19th edn, 2018, para.12-12).
Throughout my 28 years as a practising barrister this proposition would have been regarded as so obvious as not to require the citation of authority. Certainly we were not shown any authority to the contrary. And I agree with Nugee LJ that there is no special rule for experts.
    1. As Asplin LJ has set out, an order was made in this case in the usual way giving each party permission to rely on expert evidence from one microbiologist and one gastroenterologist. The order made provision for the relevant experts to meet and agree a joint statement setting out the areas of their agreement and disagreement. Martin Spencer J said at paragraph [36] of his judgment:-
“It may be that, had the Defendant served controverting evidence, Professor Pennington would have expanded upon his reasoning, for example in a meeting of experts, and such reasoning would have found its way into a joint statement. As it turned out, that step never became necessary because the evidence of Professor Pennington stood alone. Nor did the Defendant seek to challenge the reasoning that might have lain behind Professor Pennington’s conclusions by calling for him to be cross-examined, as it had every right to do. In those circumstances, the court must assume that there is some reasoning which lies behind the conclusion which has been reached and summarised, and that this reasoning is not challenged.”
    1. This was a multi-track trial where there was no requirement (as there is on the fast track and the small claims track: CPR 35.7(5)) for a special order that experts should give evidence orally. The default position, therefore, was that witnesses would have to attend for cross-examination if requested to do so. If Professor Pennington had for whatever reason been unavailable to attend for cross-examination, or had attended for cross-examination and added nothing to the reasoning in his report despite being challenged on his conclusions, then I would agree that Judge Truman would have been entitled to dismiss the claim for the reasons given by Asplin and Nugee LJJ. However, that is not what happened in this case.
    1. I do not accept that the principle set out in Phipson is confined to cases such as Browne v Dunn, in which it was held that a witness must be challenged in cross-examination if it is sought to allege that the witness is lying. The principle is wider than that, and applies both to lay witnesses and experts. It does not extend to every point of detail in a long witness statement: that is a matter for the discretion and common sense of the trial judge. But here Professor Pennington gave a clear conclusion on the very issue on which he was asked to give an opinion, namely that “on the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel”. This could and should have been challenged in cross-examination.
    1. I agree with Asplin LJ that the criminal cases are not of much assistance. This is for several reasons. Firstly, it is now wholly unacceptable for judges to direct juries to convict: it is therefore conventional in the ordinary case where the prosecution must prove their case beyond reasonable doubt, and the only expert evidence is firmly in favour of the prosecution, to tell the jury that we have trial by jury and not trial by expert. The same direction is often given on an issue such as diminished responsibility where the defence bear the burden of proof, but this is subject to the duty of the judge, as held in R v Barron, to withdraw the issue from the jury if there is no rational or proper basis for rejecting a matter within the domain of scientific expertise upon which the experts are agreed and on which they have not been challenged.
    1. Secondly, the prosecution is under a duty to disclose evidence (including expert evidence) in its possession which might undermine the Crown’s case or assist the defence; defendants in civil cases, and their insurers, are under no such duty.
    1. Thirdly, even on an issue where the burden of proof is on the defence, it is inconceivable that a criminal trial judge would allow the prosecution to make closing submissions to the jury that the reasoning of a defence expert was defective unless the relevant points had been fairly and squarely put to the expert in the witness box.
    1. I think that Martin Spencer J was wrong to hold that a judge is effectively bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence; and that “once a report is truly uncontroverted, the role of the court falls away”. As the Supreme Court said in Kennedy v Cordia Services LLP [2016] 1 WLR 597, “expert assistance does not extend to supplanting the court as the decision-maker. The fact-finding judge cannot delegate the decision-making role to the expert.” But 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. There may be exceptional cases such as an obvious mistake on the face of the expert’s report (see Woolley v Kent CC [2006] EWCA Civ 53 for a useful example), where no conflicting evidence or cross-examination is necessary, but this case is not exceptional in any sense.
    1. Much reliance was placed by the Defendants on the passage in the judgment of the Supreme Court in Kennedy v Cordia (Services) LLP [2016] 1 WLR 597, in which Lords Reed and Hodge introduced the phrase “a bare ipse dixit” (used by Lord President Cooper in Davie v Magistrates of Edinburgh [1953] SC 34) into English law and held that a mere assertion or an unsubstantiated ipse dixit by an expert is worthless; though it is important to note that the Supreme Court went on to approve a dictum of Wessels JA in a South African case that an expert’s bald statement of his opinion is not of any real assistance “except possibly where it is not controverted” [emphasis added]. Kennedy v Cordia was a case in which the admissibility of expert evidence on behalf of the pursuer was disputed. The Lord Ordinary allowed it to be admitted, the expert was then cross-examined; and judgment was given for the pursuer. The Inner House held that the evidence should not have been admitted, but the Supreme Court restored the decision of the trial judge. The case provides no support at all for the proposition that a defendant can seek to dismantle the reasoning of an expert for the first time in closing submissions without having applied to cross-examine the expert.
    1. Mr Stevens QC submitted that Judge Truman did not find that the Professor’s opinion was wrong, only that she could not agree with him that causation was proved. This, as I see it, is hair-splitting. If the distinction is a valid one it suggests that there is a special rule applying to opinions on causation as opposed to those on any topic, and I do not consider that there is or that there should be such a distinction.
    1. I am not greatly impressed by the importance attached to Professor Pennington’s failure to give a meaningful answer to question 4 of the Part 35 questions. This noted that the witness had offered his opinion that the Claimant suffered gastric illness caused by consumption of contaminated food or fluid from the hotel, and asked to what extent there would be “a range of opinion on causation among appropriate experts”; if so, what the range would be and what his position would be within it, and what acts he had relied on in adopting his position within that range. PD 35 paragraph 3.2(6) does indeed provide that “where there is a range of opinion on the matters dealt with in the report” the expert must summarise the range of opinions and give reasons for his own. But this seems to me to apply more readily to general propositions rather than to the question of whether, taking all the facts of this case into account, causation was proved on the balance of probabilities. In any event, I do not consider that this ground of appeal adds anything of significance to the more important Ground 1.
    1. Mr Griffiths must be wondering what he did wrong. He instructed a leading firm of personal injury solicitors, who in turn instructed an eminent microbiologist whose integrity has not been questioned. Mr Griffiths and his wife gave evidence at the trial, were cross-examined, and were found by the judge to be entirely honest witnesses. The eminent expert gave his opinion that on the balance of probabilities Mr Griffiths’ 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.
  1. Asplin LJ, with whom Nugee LJ agrees, says at [65] that “as long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so”, and that she can see nothing which is inherently unfair in that procedure. With respect, I profoundly disagree. 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.