GRIFFITHS -v- TUI: SUPREME COURT FINDS FOR THE CLAIMANT: THE TRIAL WAS UNFAIR: POINTS SHOULD HAVE BEEN PUT TO THE EXPERT

In a judgment today TUI UK Ltd  v Griffiths [2023] UKSC 48 the Supreme Court overturned the decision of the majority of the Court of Appeal.  It is an important decision on procedural fairness. In particular the duty of a litigant to “put their” case to a witness, including an expert witness.  This duty is not confined to matters relating to honesty.

“The general rule in civil cases…  is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.”

WEBINAR ON EXPERT EVIDENCE

This case will be considered in a webinar on Experts in the Courts in 2023  on the 24th January 2024. Booking details are available 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.

That High Court decision was then overturned by a majority verdict of the Court of Appeal.

THE CLAIMANT’S SUCCESSFUL APPEAL TO THE SUPREME COURT

The claimant’s appeal to the Supreme Court was successful.  Lord Hodge gave the single judgment of the Court and it was held that the fact that the defendant had not asked adduced their own expert, nor sought to cross-examine the claimant’s expert, meant that the trial was unfair.  The Supreme Court overturned the Court of Appeal decision and the claimant’s case was successful.

42.It is the task of a judge in conducting a trial in an adversarial system to make sure that the trial is fair. It is the task of the judiciary in developing the common law, and the makers of the procedural rules, to formulate rules and procedures to that end. One such long-established rule is usefully set out in the current edition of Phipson on Evidence 20^th ed (2022). Bean LJ quoted the previous edition, which was in materially the same terms, at the start of his dissenting judgment. At para 12-12 of the 20^th edition the learned editor states:

This statement is supported by case law, some of which I discuss below, and has often been cited with approval by the Court of Appeal. See, for example, recently, In re B (A Child) [2018] EWCA Civ 2127; [2019] 1 FCR 120, para 18 per Peter Jackson LJ; and Edwards Lifesciences LLC v Boston Scientific Scimed Inc. [2018] EWCA Civ 673; [2018] FSR 29 (“Edwards Lifesciences”), para 62 per Floyd LJ. An earlier version of the text from the 12^th edition of Phipson (1976) was cited in Markem, para 59 (p 786) in which the court quoted with approval from the judgment of Hunt J in the Australian case of Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607 (“Allied Pastoral”), in which Phipson was cited.

43. I am satisfied that the statement in Phipson is correct and, as explained below, it summarises a longstanding rule of general application. It is not simply a matter of extensive legal precedents in the case law. It is a matter of the fairness of the legal proceedings as a whole. While many of the cases may have been concerned with challenges to the honesty of a witness, I see no rational basis for confining the rule to such cases or those analogous categories, such as allegations of bad faith or aspersions against a witness’s character, as Mr Stevens suggests.

44. Although the rule of professional practice is often referred to as the rule in Browne v Dunn, taking its name from the case in the House of Lords in 1893, the rule is of considerably greater antiquity. The Queen’s Case (1820) 2 Brod & Bing 284; 129 ER 976 is an example of a closely analogous rule. In that case, which concerned the trial in the House of Lords of Queen Caroline for adultery when King George IV sought to annul his marriage to his estranged wife, several legal questions arose which resulted in the House of Lords posing questions to be answered by the Lord Chief Justice and the consulted judges. One of the questions was whether, where a prosecution witness had been examined in chief, and had not been questioned on cross-examination as to allegations that the witness had attempted corruptly to procure others to give evidence for the prosecution, it would be competent for the accused party to lead the evidence of defence witnesses to prove such attempts without first recalling the witness to be examined on those allegations. Abbott CJ (the Lord Chief Justice of the King’s Bench) gave the unanimous opinion of the consulted judges that the proposed evidence could not be adduced without the prior cross-examination of the witness about the matter. He stated (pp 313-314; ER p 988):

The Lord Chief Justice and the consulted judge gave a similar opinion on the need first to put a point in cross-examination in response to a question whether, when a witness stated that he did not remember the cause of a quarrel, the defendant’s counsel could lead evidence that the witness had on an earlier occasion stated the cause of the quarrel: pp 300-301, ER 982-983.

45.Moving forward 73 years, Browne v Dunn involved an action for libel against a solicitor and the assertion of legal professional privilege in relation to a document which the solicitor prepared for signature by his proposed clients, containing complaints about the claimant’s behaviour and instructing the solicitor to act for them in relation to those complaints. What is relevant to this appeal is that counsel asked the jury to disbelieve the evidence of the clients that they had instructed the solicitor to act on their behalf against the claimant without having challenged the veracity of that evidence on cross-examination. Lord Herschell LC (at pp 70-71) stated his understanding of the rule:

46.Lord Herschell went on to say that there was no need to waste time by cross-examining a witness where it is perfectly clear that he had prior notice that the opposing party intended to impeach the credibility of the story which he was telling. He continued: “All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

47.Lord Halsbury agreed with the Lord Chancellor’s statements as to how a trial should be conducted, and said (pp 76-77):

48.Lord Morris (pp 78-79) concurred with those two speeches but stated that he wished to guard himself against laying down any hard and fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. Lord Bowen agreed in the dismissal of the appeal but made no statement of general principle on the need to cross-examine a witness.

49.It is clear, as Mr Stevens submits, that the case was concerned with a challenge to the credibility of witnesses. But the passages in the speech of Lord Halsbury, which I have emphasised, envisage a rule of wider scope, giving a witness the opportunity to explain his or her evidence if it is to be impugned on other grounds.

50. Moving on many years, in Deepak Fertilizers & Petrochemical Ltd v Davy McKee (UK) London Ltd [2002] EWCA Civ 1396, a case concerning a claim for damages for breach of contract following an explosion in a chemical plant in Mumbai, the Court of Appeal, in the judgment of Latham LJ, addressed a question whether the judge had been entitled to reject the evidence of a witness as to the measures which the appellants would have taken if they had been properly advised by the respondents. The witness, Mr Kotwal, was not cross-examined on the matter nor was he asked any questions by the judge concerning the reliability of his evidence. Nonetheless, the judge rejected Mr Kotwal’s evidence on causation. The Court of Appeal held that he was wrong to do so. Latham LJ stated the general rule in these terms (para 49):

51. He cited in support of this proposition a passage from the 15^th edition of Phipson (2000) which was worded differently from the text which I have quoted in para 42 above from the 20^th edition but nonetheless articulated the rule which Latham LJ stated. He continued (para 50):

Latham LJ recognised that each case depends upon the way in which the issue arose and was dealt with in the evidence. He concluded that unfairness had arisen in that case. Hart J and Brooke LJ agreed with his judgment, subject to qualifications which are not relevant to the issue of unfairness.

52. In Markem, which was decided in 2005, Jacob LJ, with whom Kennedy and Mummery LJJ agreed, addressed several appeals concerning entitlement to patents in a dispute between a company and its former employees. One of the issues which arose was whether the trial judge had been entitled to disbelieve the evidence of a witness, Mr Buckby, concerning his lack of knowledge about a memorandum when there had been no suggestion on cross-examination that his evidence in chief was false. The judge’s adverse findings about the evidence of other witnesses called by the defendant were challenged on the same basis. In para 56 Jacob LJ described the challenge, which was upheld, in these terms:

Before the appellate hearing, the Court of Appeal had alerted the parties to the decision in Browne v Dunn and the Australian case of Allied Pastoral. Jacob LJ observed that Browne v Dunn, which had been reported only in “a very obscure set of reports”, was not well known to practitioners in the United Kingdom although practitioners in Australia and Canada were very alive to the rule. Jacob LJ quoted and applied the conclusion of Hunt J in Allied Pastoral who, having cited Browne and Dunn and Phipson about the correct procedure where counsel proposes to impeach a witness’s credit, stated (p 634):

While Markem was concerned with an attack on the credibility of witnesses, the passage in Allied Pastoral which the Court of Appeal approved was, like the speech of Lord Halsbury in Browne v Dunn, framed in broad terms and not confined to attacks on a witness’s credibility.

53. I also observe that any lack of awareness of the case of Browne v Dunn in the United Kingdom would have been balanced by an awareness of the rule from the leading textbooks, including Phipson and Cross on Evidence. Each of the 11^th to 14^th editions of Phipson in 1970, 1976, 1982 and 1990 referred to the requirement on cross-examiners to put their own case so far as it concerned the particular witness, and to put any suggestion that a witness was not speaking the truth so as to give an opportunity for explanation, and cited Browne v Dunn as authority for those propositions. Similarly Cross on Evidence (after the 7^th edition, Cross & Tapper) in its 6 editions between 1970 and 1999 (the 4^th to 9^th editions) consistently stated that any matter on which it was proposed to contradict a witness must normally be put to that witness so that the witness may have an opportunity of explaining the contradiction and that a failure to do so may be held to be an implied acceptance of the evidence. Browne v Dunn was cited as authority. It may be that the general rule was enforced with greater rigour in Australia, but the rule itself would, I suggest, have been well known in England when Markem was decided.

54.In Tullow Uganda Ltd v Heritage Oil and Gas Ltd [2013] EWHC 1656 (Comm); [2014] 1 All ER (Comm) 22, Burton J addressed a circumstance where defence counsel had not challenged the veracity of witnesses, Mr Inch and Mr Martin, in cross-examination lasting almost three days and three and a half days respectively, or in relation to Mr Martin in written closing submissions, but had mounted such an attack in his oral closing submissions. In further submissions the court was referred to Browne v Dunn and Markem, and Burton J stated (para 62):

55. The focus of this case was again on the credibility of the witnesses, but Burton J usefully pointed out that what was at stake was not just fairness to the witness (and he might have added fairness to the party who had called the witness) but the integrity of the court process itself in enabling the judge to reach a sound conclusion.

56.In Chen v Ng, which involved a dispute about the ownership of shares, the Judicial Committee of the Privy Council (“the Board”) considered how to apply the general rule in Browne v Dunn and Markem in a context in which a witness, Mr Ng, had been challenged in cross-examination that he was not telling the truth about the basis on which shares had been transferred but not on the two grounds on which the judge ultimately disbelieved his evidence. The Board, in a judgment delivered by Lord Neuberger and Lord Mance, upheld the decision of the Court of Appeal of the Eastern Caribbean Supreme Court that the judge had acted unfairly in relying on those grounds. The Board reached that view because the ultimate factual dispute was the basis upon which, and the circumstances in which, the transfer of the shares had taken place, and the issue on which Mr Ng had been disbelieved was central to the proceedings. Both grounds could reasonably be expected to have been put in cross-examination and it was possible that Mr Ng would have given believable evidence which weakened or undermined those grounds.

57. The Board expressed the general rule in these terms (para 53):

It advised that it was appropriate to take a nuanced approach to the general rule. The Board stated (para 52):

58.The Board concluded that the question for an appellate court was the overall fairness of the trial; the Board stated (para 54):

59.In Edwards Lifesciences the Court of Appeal (Kitchin, McCombe and Floyd LJJ) addressed the application of the rule in Browne v Dunn to the unchallenged evidence of an expert witness in a dispute about the validity and infringement of patents. The defendant, Boston, argued that the court was bound to accept the evidence of Professor Lutter in relation to certain matters as a consequence of the failure by counsel for Edwards to cross-examine him on those matters, or at least that the appellate court should look at the matter again and if persuaded that cross-examination could have made a difference to the outcome, set aside the judge’s conclusion. Edwards’ response was that the rules about what must be put on cross-examination should not be rigidly applied in relation to expert evidence. Edwards submitted that the judge was able to evaluate the reasons set out in the expert’s report. The points had been addressed by another of Boston’s expert witnesses on cross-examination and in a rejoinder report.

60.In his discussion of the point Floyd LJ quoted the obligation to cross-examine set out in the 19^th edition of Phipson (2018) and referred to Browne v Dunn and Markem. Floyd LJ recognised that the rule is an important one, but, like the Board in Chen v Ng (which appears not to have been cited to the Court of Appeal), he did not consider it to be an inflexible one. In his discussion in paras 63-69 he made six points. First, where, to save time, it is proposed not to cross-examine two witnesses on the same or similar subject matter it was good practice to raise the matter with the judge and obtain his or her directions to ensure fairness. (That suggestion is not relevant to this appeal). Secondly, the purpose of the rule is not only for the benefit of the witness but is to ensure the overall fairness of the proceedings for the parties. Thirdly, the rule applies with particular force where a witness gives evidence of fact of which the witness has knowledge, and it is proposed to invite the court to disbelieve that evidence. Fairness to the witness and to the parties demands that the witness be given the opportunity to respond to the challenge. Fourthly, it was not appropriate to apply the rule rigidly in every situation. Where, as in the case in question, there had been an opportunity to respond to the other side’s case through several rounds of expert evidence which made the position taken by each side’s experts clear, the potential for unfairness to the witness was much reduced. Fifthly, not every part of the evidence of a witness to fact needs to be challenged head-on that it is untrue or simply misguided; the test was fairness; see Various Claimants v Giambrone & Law [2015] EWHC 1946, para 21 per Foskett J. Sixthly, the question for the appellate court is “whether the decision not to cross-examine has led to unfairness to the extent that the judge’s decision on the relevant issue is thereby undermined” (para 69). In that case, there had been no unfairness to the expert witness or the party adducing his evidence as the witness had had the opportunity to respond to the case made against his position.

61.From this review of the case law it is clear that there is a long-established rule as stated in Phipson at para 12.12 with which practising barristers would be familiar, as Bean LJ suggested in para 87 of his judgment. There are also circumstances in which the rule may not apply. Several come to mind. First, the matter to which the challenge is directed is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain. A challenge to a collateral issue will not result in unfairness to a party or interfere with the judge’s role in the just resolution of a case; and a witness in such a circumstance needs no opportunity to respond if the challenge is not an attack on the witness’s character or competence.

62.Secondly, the evidence of fact may be manifestly incredible, and an opportunity to explain on cross-examination would make no difference. For example, there may be no need for a trial and cross-examination of a witness in a bankruptcy application where the contemporaneous documents properly understood render the evidence asserted in the affidavits simply incredible: Long v Farrer & Co [2004] EWHC 1774 (Ch); [2004] BPIR 1218, para 60, in which Rimer J quotes from the judgment of Chadwick J in In re Company (No 006685 of 1996) [1997] 1 BCLC 639, 648.

63. Thirdly, there may be a bold assertion of opinion in an expert’s report without any reasoning to support it, what the Lord President (Cooper) in Davie v Magistrates of Edinburgh described as a bare ipse dixit. But reasoning which appears inadequate and is open to criticism for that reason is not the same as a bare ipse dixit.

64.Fourthly, there may be an obvious mistake on the face of an expert report. Bean LJ referred to this possibility in para 94 of his judgment and cited Woolley v Essex County Council [2006] EWCA Civ 753 as a useful example. In Hull v Thompson [2001] NSWCA 359, (“Hull v Thompson”) Rolfe AJA at para 21 expressed the view that such a circumstance would be where the report was ex facie illogical or inherently inconsistent. See also A/S Tallinna Laevauhisus v Estonian State Steamship Line (1946) 80 Ll L Rep 99, 108 (“Tallinna”) where Scott LJ spoke of the court rejecting an expert’s evidence if “he says something patently absurd, or something inconsistent with the rest of his evidence.”

65.I would add that what is said about the evaluation of expert evidence of foreign law in Tallinna and the other cases cited by the parties in argument in this appeal may now need to be read in the light of the recent guidance of this court in Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45, [2022] AC 995 and of the Board in Perry v Lopag Trust Reg [2023] UKPC 16; [2023] 1 WLR 3494.

66.Fifthly, the witnesses’ evidence of the facts may be contrary to the basis on which the expert expressed his or her view in the expert report. Rolfe AJA in Hull v Thompson, para 21, spoke of the report being “based on an incorrect or incomplete history, or where the assumptions on which it is founded are not established.”

67. Sixthly, as occurred in Edwards Lifesciences, an expert has been given a sufficient opportunity to respond to criticism of, or otherwise clarify his or her report. For example, if an expert faces focused questions in the written CPR Pt 35.6 questions of the opposing party and fails to answer them satisfactorily, a court may conclude that the expert has been given a sufficient opportunity to explain the report which negates the need for further challenge on cross-examination.

68. Seventhly, a failure to comply with the requirements of CPR PD 35 may be a further exception, but a party seeking to rely on such a failure would be wise to seek the directions of the trial judge before doing so, as much will depend upon the seriousness of the failure.

69. Because the rule is a flexible one, there will also be circumstances where in the course of a cross-examination counsel omits to put a relevant matter to a witness and that does not prevent him or her from leading evidence on that matter from a witness thereafter. In some cases, the only fair response by the court faced with such a circumstance would be to allow the recall of the witness to address the matter. In other cases, it may be sufficient for the judge when considering what weight to attach to the evidence of the latter witness to bear in mind that the former witness had not been given the opportunity to comment on that evidence. The failure to cross-examine on a matter in such circumstances does not put the trial judge “into a straitjacket, dictating what evidence must be accepted and what must be rejected”: MBR Acres Ltd v McGivern [2022] EWHC 2072 (QB), para 90 per Nicklin J. This is not because the rule does not apply to a trial judge when making findings of fact, but because, as a rule of fairness, it is not an inflexible one and a more nuanced judgment is called for. In any event, those circumstances, involving the substantive cross-examination of the witness, are far removed from the circumstances of a case such as this in which the opposing party did not require the witness to attend for cross-examination.

70. In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

71. In assessing the fairness of the trial in this case it is important to have regard to the approach which TUI’s legal team adopted in response to the claim. TUI in its defence put Mr Griffiths to proof of his claim. TUI chose not to lodge the report of an expert microbiologist, which it obtained. That report might have put forward a case on causation which differed from that of Professor Pennington. TUI failed to lodge the report of their expert gastroenterologist in a timely manner and called no witnesses as to fact. The CPR Pt 35.6 questions, which I have set out in para 14 above, were not clearly focused on the matters which were the objects of criticism in counsel’s submissions and did not put Professor Pennington on notice of those criticisms. TUI chose not to request that Professor Pennington be made available for cross-examination. TUI’s challenge to his evidence was not intimated to Mr Griffiths’ legal team until the submission of its skeleton arguments on the eve of the trial, by which time it would have been too late for them to seek to have him attend to give evidence.

72.It is also necessary to consider the factual evidence which was available to Professor Pennington and was before the trial judge. HHJ Truman accepted in full the evidence of Mr and Mrs Griffiths. They were on an all-inclusive package at the hotel and ate there almost exclusively. They gave some evidence of poor hygiene standards at the hotel, which was not contradicted. They spoke of eating out in the local town on one occasion on the evening of 7 August 2014; Mr Griffiths did not eat much. In contrast with the evidence relating to the hotel, there was no evidence as to the hygiene standards at Burger King in Birmingham airport or at the restaurant in the local town.

73.Professor Pennington’s report related to causation, which was the central issue on which Mr Griffiths had been put to his proof. It was terse and could and should have included more expansive reasoning. It left many relevant questions unanswered. But it was far from a bare ipse dixit. In support of his conclusion that on the balance of probabilities Mr Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel, his reasoning, as gleaned from what he expressly said, appears to be as follows: (i) the stool tests identified giardia as one of the pathogens, (ii) giardia is common in Turkey, (iii) the occurrence of Mr Griffiths’ illness was within the range of the incubation period of giardia so that the onset of the illness was consistent with eating contaminated food in the hotel, (iv) amoebic dysentery and viral infection (including adenovirus and rotavirus) were unlikely to be the causes of the illness for the reasons he gave.

74.As I have said, the report left many questions unanswered. But in the context of a claim of relatively low value, Professor Pennington may have thought that his full reasoning was implicit. Importantly, he explained an important part of his reasoning in his answers to the CPR Pt 35.6 questions which I have set out in para 15 above. Consistently with the publications which he accepted as reliable (answer 10), he associated giardia with poor hygiene standards and contaminated food or fluid (para 4 of his report and answers 5 and 8). I have highlighted answers 4 and 6 because they point to his having made a simple assessment of the likely cause of the illness. Professor Pennington explained that he had regard to the length of time spent in the hotel, the nature of the food consumed, and the frequency of consumption of food in the hotel as relevant considerations in attributing the cause of the illness to the ingestion of food or fluid in the hotel. In my view, what he was saying was that he was relying in making his assessment of likely causation on the frequency and circumstances of eating in the hotel when set against the single meal at Birmingham airport and the meal in the local town on 7 August 2014 and other possible sources of infection. This assessment of the balance of probabilities is at a high level of generality but it is not irrational and may have been proportionate in the circumstances of the claim. Further, there is no basis for concluding that Professor Pennington would not have explained his reasoning more clearly if challenged on cross-examination.

75.None of the exceptions identified in paras 61-68 above applied to Professor Pennington’s evidence. In the absence of a proper challenge on cross-examination it was not fair for TUI to advance the detailed criticisms of Professor Pennington’s report in its submissions or for the trial judge to accept those submissions.

76.Both the trial judge and the majority of the Court of Appeal erred in law in a significant way. The trial judge did not consider the effect on the fairness of the trial of TUI’s failure to cross-examine Professor Pennington. The majority of the Court of Appeal did, but they erred in limiting the scope of the rule to challenges to the honesty of a witness. As a result, neither properly addressed the application of rule to the facts of this case. In my view, in agreement with Bean LJ’s powerful dissent in para 99 of his judgment, Mr Griffiths did not have a fair trial.

77.I also respectfully disagree with Asplin LJ’s acceptance of Mr Stevens’ attempted distinction between holding that Professor Pennington’s report was wrong and holding that it did not establish Mr Griffiths’ case on causation. This argument is, as Bean LJ stated, hair-splitting. On any view, the trial judge rejected Professor Pennington’s conclusion that on the balance of probabilities the cause of Mr Griffiths’ illness was food or fluid ingested in the hotel.

78.In view of those errors of law, it falls to this court to make its own assessment of the evidence. TUI failed to challenge Professor Pennington’s report on cross-examination, which was therefore uncontroverted. I have regard to the factual findings of the trial judge summarised in para 72 above (findings of poor hygiene standards in the hotel at which Mr and Mrs Griffiths had almost all their meals during their stay and the absence of evidence of poor standards at the other establishments). I also have regard to Professor Pennington’s report and CPR Pt 35.6 answers summarised in paras 73 and 74 above (the identification of giardia in the stool tests, its commonness in Turkey, its incubation period, his explanation as to why he excluded amoebic dysentery and viral infection as unlikely, and his explanation of the straightforward basis of his assessment in answers to questions 4 and 6). I conclude that, on that evidence, Mr Griffiths has established his case on the balance of probabilities.

79.I should mention briefly the case of Wood v TUI to which HHJ Truman and Martin Spencer J referred. The obiter dicta of Burnett LJ and Sir Brian Leveson P in paras 29 and 34 of that case respectively were made in the context of TUI’s expressed concern that it should not be liable for every upset stomach occurring on a package holiday which it provides. Burnett LJ was unquestionably correct that the burden lies on the claimant to prove that food or drink provided by the hotel included in the package holiday caused his or her illness. Both he and Sir Brian Leveson suggested that it might be very difficult to do so in the absence of evidence that others who consumed the food had been similarly affected. That suggestion may be questionable in the light of Professor Pennington’s evidence in answer 7 to the CPR Pt 35.6 questions that most cases of infective gastroenteritis caused by eating food are sporadic. But his opinion was not explored, as it should have been, on cross-examination in this case, and it is not appropriate to say more. In para 34 Sir Brian Leveson suggested that alternative explanations “would have to be excluded”. If, by the use of the term “excluded”, he meant that the alternative explanations were to be discounted as less likely causes of the illness than the impugned food and drink, I would agree.

80.Notwithstanding the concerns in Wood v TUI, in the present case, there was no question of inferring from the mere fact of illness that the illness was caused by contaminated food or drink provided by the hotel. Professor Pennington had the advantage of the stool samples to identify the likely pathogen and, as discussed above, a basis in the factual evidence for inferring on the balance of probabilities that the likely cause of the illness was the ingestion of food or fluid in the hotel.

81.Finally, TUI expressed concern about the adverse consequences to the cost-effective resolution of civil litigation, including low-value holiday sickness claims, if the appeal were to be upheld. The conclusion I have reached does not mean that in most cases of modest value when a claimant presents an inadequately reasoned expert report, a defendant will inevitably have to obtain a detailed expert report and require a claimant’s expert to attend for cross-examination. A defendant may be able to adopt more economic ways of testing the expert’s evidence. It is important and consistent with the ethos of the CPR that there be a proportionate use of resources in the pursuit and defence of such claims. A defendant can ask focused CPR Pt 35.6 questions which articulate clearly the challenge or challenges on which the defendant wishes to make and give the expert the opportunity to explain his or her evidence in response to those challenges, thereby obviating the need to seek the expert’s attendance for cross-examination. In this case TUI’s questions did not give adequate notice of the challenges it ultimately made. Where the defendant has expert advice, a meeting of experts to discuss their positions can lead to a joint report restricting the issues in dispute. In any event, a focused cross-examination making the challenge and giving the expert the opportunity to explain his or her report and CPR Pt 35.6 answers need not be long.

82.Further, as Dr Julian Fulbrook observed in his insightful case note on the Court of Appeal’s judgment (Journal of Personal Injury Law (2022), C55-C60), if the court were to sanction the detailed critique and demolition of an uncontroverted expert report in closing submissions, that would undermine the CPR’s arrangement for agreeing expert reports in advance of trial and narrowing down the areas of dispute. It might also encourage experts defensively to produce prolix reports and add to the cost of the legal proceedings.

(ix)

83.I would allow the appeal. I would invite the parties to make written submissions on the appropriate form of order within 14 days of the date of this judgment.