In general, a party is required to challenge on cross-examination the evidence of any witness of the opposing party if it wishes to submit to the court that the evidence should not be accepted. Otherwise, the judge is generally bound to accept the evidence.
The Supreme Court has considered this issue in Tui Ltd v Griffiths [2023] UKSC 48. The case concerned an all-inclusive package holiday to a hotel resort in Turkey undertaken by Peter Griffiths, his wife and their son. They ate almost exclusively at the hotel. While there, Griffiths suffered a serious stomach upset which left him with long-term problems. He sued the respondent, Tui, from whom he had purchased the holiday.
At the trial, the Griffiths gave uncontested evidence of poor hygiene standards at the hotel and presented an expert report from Professor Pennington, who concluded that the likely cause of Griffiths’ illness was the food and drink served at the hotel. The report was terse and left many relevant questions unanswered. However, it was not an unsupported assertion and Professor Pennington had explained an important part of his reasoning in answers to questions under CPR 35.
Tui neither cross-examined Professor Pennington nor presented any expert evidence of its own on the question of causation. Instead, it argued in closing submissions that the report contained deficiencies – incomplete explanations and failure to discount other possible causes – which meant that Griffiths’ case was unproven. The trial judge agreed.
Griffiths’ appeal to the High Court succeeded, as did Tui’s in the Court of Appeal. The Supreme Court found unanimously for Griffiths. By criticising Professor Pennington’s report and accepting Tui’s final submissions, the judge denied Griffiths a fair trial.
The purpose of the rule requiring expert or fact evidence to be challenged by cross-examination is to ensure a fair trial. The rule may be relaxed where i) the challenge is collateral or insignificant; ii) the evidence is manifestly incredible; iii) the expert’s assertion has no supportive reasoning; iv) there is an obvious mistake; v) the factual basis on which the report is based conflicts with fact evidence; vi) the expert has been given sufficient opportunity to respond to criticism or vii) the report does not comply with CPR PD 35. None of those 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. Fairness required Professor Pennington to be given the opportunity to respond to Tui’s criticisms which were not put to him in cross-examination.
Louise Clark is a property law consultant and mediator
