Had Enough of Experts? Appealing to the Uncontroverted

This article provides a brief introduction to the term “uncontroverted evidence” and the current approach of the courts to expert evidence which has not been “challenged” by another party.

Square Pegs, Round Holes

Expert evidence can often assist with gaps in the court’s knowledge when it considers the merits of (or lack of) a claim contested at trial. For example, it is not expected for legal professionals to have extensive medical knowledge when considering illnesses which may or may not have allegedly been caused by an accident.

It can be the missing piece of the puzzle in litigation, often forming part of closing submissions in court. For example, expert reports can assist in determining causation as part of satisfying a claim (or dismissing one), or they can assess an individual’s injuries after an accident (in turn allowing a claimant to quantify a claim for pain, suffering, and loss of amenity in addition to establishing causation). However, as you will find out later on in this article, it can also be the opposite.

Procedure

The relevant procedural rules regarding the use of experts are at CPR 35. Pertinent points are:

  • Permission is required from the court before adducing an expert report;
  • Experts can be solely or jointly instructed by the parties;
  • Experts have an overriding duty to the court;
  • Experts can be challenged by a party (for example, by instructing another expert, by way of written questions or cross-examination at trial); and
  • In the case of disagreement amongst multiple experts, a meeting can be held for them to discuss their respective opinions, and it is important for any expert report to comply with Practice Direction 35.

To Challenge or not to Challenge? Griffiths v TUI

What happens if a party does not agree with an expert report, has not adduced expert evidence in response or called the expert to be cross-examined, yet seeks to challenge expert evidence during submissions on the day of the trial? Can the court reject the conclusions of an expert report of its’ own discretion in the absence of it being “challenged” i.e., it being “uncontroverted” expert evidence?

The recent case of Griffiths v TUI (UK) Limited [2021] EWCA Civ 1442 sheds light on this issue.

The Claimant brought a claim against a tour operator, TUI, having suffered a gastric illness caused by the food and drink (as part of concerns regarding the allegedly unhygienic practices of the hotel in question) they consumed pursuant to a holiday package contract.

At the trial, a microbiologist’s report was relied on by the Claimant in support of causation (there not being an expert instructed on behalf of the Defendant). The report was described as “minimalist” consisting of three substantive paragraphs in response to the question: “whether on the balance of probabilities the illnesses in question were caused as a result of staying at the hotel in question and a breakdown in the health and hygiene practices at the hotel”. It concluded that on the balance of probabilities the Claimant had “acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel”.

Although part 35 questions were asked of the expert, those questions sought clarification regarding the extent to which there would be a range of opinions on causation amongst other experts (and subsequently, the expert’s own position within that range) and the factors referred to in their conclusion. The report was not challenged by way of evidence being called from the Defendant (for example, by calling any witnesses or any documentary evidence, or by way of cross-examination of the Claimant or the expert), with the Defendant making submissions regarding the alleged inaccuracies and subsequently defective nature of the report in closing.

The claim was dismissed at trial on the basis of the report being deficient (in light of the burden of proof being on the Claimant to establish all elements of their claim, including causation).

  • The Judge referred to Wood v TUI [2018] QB 927 as part of highlighting the deficiencies with the report, stating that it had failed to consider whether two separate infections had in fact taken place (with the Claimant consuming a meal on 7 August outside of the hotel), failed to distinguish why the Claimant’s illness was due to the food consumed at the hotel rather than the hotel’s hygiene procedures, failed to justify why the cause of the illness was a viral one (rather than bacterial), and failed to address any non-food related methods of transmission as a possible cause of the Claimant’s illness.

Subsequent Events

The claim was allowed on appeal to the High Court, with judgment determining that as the report was Part 35 compliant (i.e., the report was more than just a bare assertion of the illness being caused as claimed without any proof or anything further), in the absence of one of the methods of challenge (as above) it was “uncontroverted”, and hence the Court was bound by its conclusions.

The Defendant appealed to the Court of Appeal with their appeal being allowed.

In allowing the appeal, the court ruled that it was for the Judge at first instance to consider the reliability of the report themselves, rather than taking it on face value in the absence of challenge. Alpin LJ made the following points on behalf of the court in allowing the appeal:

  • There is no rule to the effect that any “uncontroverted evidence” cannot be addressed in submissions and rejected by the court with it depending on the circumstances and the report in question (for example, whether the report is the most substantial piece of evidence in a case or simply part of the evidence or whether the expert report is a single or joint one);
  • A defendant is entitled to make submissions regarding the Claimant having not proven their case to the required standard (and cannot be prevented from doing so due to some or all the evidence being contained in an “uncontroverted” report, with the court’s role not being reduced to a rubber-stamping exercise); and
  • It is not for the Defendant to allow the Claimant a further opportunity to remedy any deficiencies in their report by way of challenging it (as above) with it being the responsibility of the Claimant to ensure their evidence relied on satisfies the burden of proof.

The recent judgment is likely to be welcomed by Defendants. It again affirms the starting position in any civil case being that as the Claimant has brought the claim, it is upon them to prove their claim, with part of this including adducing expert evidence that is reliable.

  • However, there is the possibility of the matter being further appealed to the Supreme Court (with reference to Bean LJ’s dissenting judgment at paragraphs [86-99] which raised principles such as the requirement for a party to challenge evidence by way of cross-examination, and the inherent unfairness of a party reserving criticisms of a report until closing submissions in a trial).

Members of Becket Chambers are experienced in providing advice and representation in a range of civil matters, including claims that involve expert evidence. If you require advice, assistance and/or representation, please contact us on 01227 786331 or clerks@becket-chambers.co.uk.