Following a recent High Court judgment, it is now critically important for defendants to be pro-active and obtain their own expert evidence. Defendants can no longer proceed to trial and rely on criticising a claimant's expert report to succeed in defending a claim.
In a gastric-illness breach of contract claim, Spencer J in Griffiths -v- TUI UK Limited  considered the correct approach to uncontroverted expert evidence. The court allowed an appeal against the dismissal of the claimant's claim at first instance. Spencer J held that so long as an expert report complies with CPR Part 35, and if there is no challenging expert evidence and the factual underpinning of the expert report are unshaken in cross-examination, that report must be accepted by the court.
Since the ruling in Wood -v- TUI Travel plc  (see our coverage of this case), package travel gastric-related claims have generally been defended either on the basis that the factual underpinnings of the expert evidence are not made out or are false, or that the reasoning in the expert report is so deficient that, following the Court of Appeal's comments with regards to causation, it should not be accepted. While Wood remains the trite law in this area, Spencer J's judgment has initiated an important change in how these cases will now proceed.
The significance of this case extends beyond the confines of gastric-illness and package travel cases. It sets an important precedent with regard to how courts will approach expert evidence in the future.
The claimant, Mr Peter Griffiths, stayed at an all-inclusive Turkish resort for a two-week holiday with his wife and son commencing on 2 August 2014. The claimant brought a claim against the tour operator TUI under the Package Travel Regulations for personal injury on the basis that he had suffered gastric-intestinal illness. He alleged that he suffered this illness due to his consumption of contaminated food and drink from the resort.
The claimant had relied on the expert report of a microbiologist and the answers his expert gave to questions put to him under CPR Part 35. It was the claimant's expert's view that the claimant had, on the balance of probabilities, contracted his illnesses through the consumption of contaminated food or fluid from the hotel.
Despite having permission, the defendant failed to obtain and serve in time an expert report from either a gastroenterologist or consultant microbiologist. After the claimant served its own microbiologist report, the defendant made an application for permission to rely on a gastroenterologist report and sought relief from sanction, both of which were refused by the court. The defendant raised CPR Part 35 questions but did not seek to cross-examine the claimant's expert at trial.
The trial judge rejected the claimant's expert report. The trial judge was of the opinion that the expert report had not gone far enough to explicitly rule out other potential sources of contamination as per the obiter comments of the Court of Appeal in Wood. Accordingly, the claim was dismissed at first instance.
The claimant appealed on the basis that where an expert report is uncontroverted (that is to say, the factual basis of it had not been shaken and there was no contradictory expert opinion), then subject to exceptional circumstances, it should be accepted by the court. In answering the question in relation to uncontroverted expert reports, Spencer J held:
'I take the view that a court would always be entitled to reject a report, even where uncontroverted, which was, literally, a bare ipse dixit, for example if Professor Pennington had produced a one-sentence report which simply stated: "In my opinion, on the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel". However, what the court is not entitled to do, where an expert report is uncontroverted, is subject the report to the same kind of analysis and critique as if it was evaluating a controverted or contested report, where it had to decide the weight of the report in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual evidence. Once a report is truly uncontroverted, that role of the court falls away. All the court needs to do is decide whether the report fulfils certain minimum standards which any expert report must satisfy if it is to be accepted at all.'
In summary, Spencer J held that if a claimant's expert report was uncontroverted, was not merely a bare assertion made by the expert without relying on any authority or proof and meets the minimum standards set out in CPR Part 35, then the report must be accepted by the court. The Court of Appeal held that although the report was 'short, indeed one could describe it as minimalist', it was not merely a bare assertion made by the claimant's expert. Despite the shortfalls of the claimant's expert report, as the defendant had failed to adduce their own expert evidence and had not cross-examined the claimant's expert at trial, the court decided it must accept the claimant's expert report.
Accordingly, the appeal succeeded. As did the claim.
Implications of the Judgment
It is clear therefore that going forward in cases, a defendant must be proactive and obtain its own expert report to contradict claimants' expert evidence. This will no doubt increase the costs of litigating and defending these claims. While the CPR allows each party to obtain its own expert report in fast-track cases, there is a risk with expert evidence from both parties, and detailed witness evidence that these claims could exceed a one-day trial causing claims to be allocated to the multi-track. This means higher claimants' costs given multi-track claims are not limited to the fixed costs which apply for package travel claims which commence on or after 7 May 2018 and remain in the fast-track.
It will be interesting to see whether the precedent set by Griffiths will lead to more success for gastric illness claims. Claimants may have more of an appetite to pursue claims previously considered too risky. For defendants, courts may be more willing to grant them permission to obtain expert reports than before, but if this is at the cost of a claim being allocated to the multi-track and therefore higher costs being claimed by claimants, then defendants may be less likely to obtain such evidence and to continue to defend these claims. Hence, all the more reason to curtail each expert's opinion to the salient points of the case and have these agreed in order to keep the case within the one-day fast-track trial allocation. If defendants do not have their own evidence to challenge the claimant's expert evidence, it is difficult to see how defendants can win these cases. In the same vein, defendants who have missed a deadline for submitting expert evidence may have more leverage with courts that are more likely to recognise the need to allow defendants to contradict claimant evidence in the interests of justice.
In September 2020 TUI applied for permission to appeal the decision and obtain a stay of execution.
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