In a recent Court of Appeal decision, it was held that unchallenged expert evidence is not automatically accepted by the court if it does not go as far as proving causation and satisfying the burden of proof. Whilst this case suggests that a judge will reject faulty evidence if no contrary evidence is provided, it could be a risky move as the court’s decision relies on the judge’s interpretation of the quality of the report. It’s important that the strength of expert evidence is assessed early on in a case.
Mr Griffiths booked an all-inclusive holiday to Turkey in August 2014. He became very unwell during the holiday and upon seeking medical attention, he was diagnosed with acute gastroenteritis. Mr Griffiths claimed that the cause of his illness was either food or drink at the TUI hotel, referencing the fact that he had on all, but one occasion eaten and drank at the hotel. He brought a claim for damages arising from breach of contract.
TUI had the permission of the court to present expert evidence from a gastroenterologist, to prove the illness, and a microbiologist, to confirm the cause.but TUI did not serve expert evidence on either matter, whereas Mr Griffiths did. His expert concluded that on the balance of probabilities, he acquired gastroenteritis as a result of contaminated food or drink at TUI’s hotel. TUI did not seek the permission of the court to adduce evidence after this point, nor did it cross examine the expert witness at trial. In TUI’s closing submissions, their counsel criticised Mr Griffiths’ expert.
The County Court held that the expert’s report was sparse and did not reach the burden of proof required for Mr Griffiths to prove his claim. She said that it was open for 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”. The claim was dismissed.
Mr Griffiths appealed the decision. At the High Court, the decision was overturned. The Judge held that it was wrong to comment on the quality of the expert’s report. Where the report is uncontroverted, contains more than just a bare assertion and complies with the minimum standard under CPR Part 35, it is not open to the court to depart from the expert’s report.
The effect of this was that defendant’s needed to carefully consider a claimant’s expert report to see if they could adduce anything to contradict the report.
Court of Appeal
On appeal to the Court of Appeal, the decision was overturned and returned to the County Court judgment. In a majority of two out of three judges, it held that a court is not bound to accept expert evidence if it has not been challenged by other evidence or cross examination. The Court of Appeal stated that the court is not just a “rubber stamp”.
The Court of Appeal ruled that “As part of a fair trial, it seems to me that it was essential that Judge Truman engaged with [the defendant’s] submissions and determined whether causation had been proved to the requisite standard. She did so quite rightly and determined that question on the evidence before her.”
This case demonstrates that it is possible for a party to sit back and criticise an expert’s report in closing submissions, without adducing any evidence to the contrary. However, this is a risky approach and is completely reliant on a judge’s interpretation of the quality of the report. At the very least, one might expect the criticising party’s representatives to cross examine the adducing party’s expert and if they are not prepared to cross examine, why not?
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