Louise Clark shares a decision that suggests parties who fail to challenge evidence do so at their peril.
Key points
- Judges are generally bound to accept unchallenged evidence
- This applies equally to factual as to expert evidence
- A party wishing to submit that evidence should not be accepted must challenge it by cross-examination
In Tui Ltd v Griffiths [2023] UKSC 48, the Supreme Court considered the status of uncontroverted expert evidence. While not a specific property case, the decision contains valuable lessons for all who prosecute and defend claims, whatever the subject matter.
Background
The case concerned an all-inclusive package holiday to a hotel resort in Turkey undertaken by Peter Griffiths and his family. They ate almost exclusively at the hotel. While there, Griffiths suffered a serious stomach upset which required hospital treatment and left him with long-term problems. He sued the respondent, Tui, from whom he had purchased the holiday, claiming damages under both the Package Travel, Package Holidays and Package Tours Regulations 1992 and sections 4 and 13 of the Supply of Goods and Services Act 1982.
The trial
Griffiths and his wife gave uncontested evidence of poor hygiene standards at the hotel and in particular the buffet restaurants in the open air. The parties had permission to rely on expert evidence from a gastroenterologist and a microbiologist.
Griffiths relied on expert reports from Linzi Thomas, a doctor specialising in gastroenterology, and Hugh Pennington, emeritus professor of bacteriology at the University of Aberdeen. Both experts responded to questions on their reports under CPR Part 35.6, but only Pennington attended the trial.
Tui failed to serve in time a report from a gastroenterologist and was refused relief from sanctions. It chose not to serve a microbiologist report or to cross-examine Pennington. Consequently, his evidence was uncontroverted in the sense that it was not in conflict with any other evidence led at trial and was not subject to challenge by cross-examination.
Griffiths relied on Thomas’s report for diagnosis and prognosis but on Pennington’s report for causation. Pennington concluded that, on the balance of probabilities, the cause of Griffiths’ illness was the food and drink served at the hotel.
Having neither cross-examined Pennington nor presented any expert evidence of its own on the question of causation, instead, Tui argued in closing submissions that the report contained deficiencies – incomplete explanations and failure to discount other possible causes – which meant that Griffiths had failed to prove his case. The trial judge agreed and dismissed the claim.
The appeals
Griffiths’ appeal to the High Court succeeded, the judge finding that once a report was truly uncontroverted, all the court needed to do was decide whether the report fulfilled the minimum standards under CPR Practice Direction 35, which any expert report must satisfy if it is to be accepted at all. Despite the judge’s criticisms, Pennington’s report was not a bare statement without any proof or supporting evidence.
Allowing Tui’s appeal, the Court of Appeal concluded that there is no strict rule that prevents the court from considering the content of an expert’s report which complies with CPR PD 35 where it has not been challenged by contradictory evidence and where there is no cross-examination.
Griffiths appealed to the Supreme Court.
The law
The general rule in civil cases – which applies to both witnesses of fact and expert witnesses – is that a party is required to challenge in cross-examination the evidence of any witness of the opposing party if they wish to submit that the evidence should not be accepted (Phipson on Evidence 20th edition, 2022).
As Latham LJ said in Deepak Fertilisers & Petrochemical Ltd v Davy McKee (UK) London Ltd [2002] EWCA Civ 1396, “one party should not be entitled to impugn the evidence of another party’s witness if he has not asked appropriate questions enabling the witness to deal with the criticisms that are being made”. Cross-examination gives the witness the opportunity to explain or clarify their evidence.
The purpose of the rule is to make sure that the trial is fair: to the party who has adduced the evidence of the impugned witness; to the witness who, in the case of an expert, may have a strong professional interest in maintaining their reputation from challenges of inaccuracy, inadequacy or dishonesty; and to the judge, who must make a proper assessment of the evidence to achieve justice.
However, the rule is not inflexible. It may not apply where:
(i) the challenge is collateral or insignificant;
(ii) the evidence is manifestly incredible and cross-examination would make no difference;
(iii) the expert’s assertion has no supportive reasoning;
(iv) there is an obvious mistake in an expert’s report;
(v) the factual basis on which a report is based conflicts with factual evidence;
(vi) the expert has been given sufficient opportunity to respond to criticism; or
(vii) the report does not comply with CPR PD 35.
The outcome
The Supreme Court found unanimously for Griffiths. By criticising Pennington’s report and accepting Tui’s final submissions, the judge denied Griffiths a fair trial.
Pennington’s report was terse and left many relevant questions unanswered, but it was not an unsupported assertion. He had explained an important part of his reasoning in answers to questions under CPR 35.
Fairness required Pennington to be given the opportunity to respond to Tui’s criticisms, which were not put to him in cross-examination. None of the exceptions applied. On the evidence, Griffiths had shown that it was more likely than not that the food and drink at the hotel had caused his illness.
Louise Clark is a property law consultant and mediator
