CA: Judges do not have to accept unchallenged expert evidence

Holiday sickness case: Expert’s evidence was deficient

Judges are not required to accept ‘uncontroverted’ – ie, unchallenged – evidence from an expert witness without further analysis, the Court of Appeal has ruled.

Lady Justice Asplin held that challenging expert evidence in closing submissions was “a high-risk strategy”, but one a party was entitled to do where it was not challenging the veracity of an expert’s evidence.

In Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442, the defendant tour operator’s case was that the evidence was merely deficient.

The claimant sued over food poisoning and subsequent gastric illness he says he suffered while on holiday in Turkey.

At trial, the claimant relied on a medical report which the defendant did not challenge by way of evidence or cross-examination but did in counsel’s closing submissions.

The claim was dismissed by Her Honour Judge Truman due to the expert’s failure to fully consider all potential causes of illness.

The claimant appealed on the basis that, where an expert report is uncontroverted in this way, it should be accepted by the court, unless there are exceptional circumstances.

Martin Spencer J agreed and allowed the appeal, saying: “Once a report is truly uncontroverted, that role of the court falls away.”

This was so long as the report complied with part 35 of the Civil Procedure Rules and provided more than a bare assertion of opinion – a relatively low bar.

The Court of Appeal allowed TUI’s appeal by majority. Giving the lead judgment, Lady Justice Asplin said: “The authorities do not support the bright line approach adopted by the judge. There is no rule that an expert’s report which is uncontroverted and which complies with CPR PD 35 cannot be impugned in submissions and ultimately rejected by the judge.”

Here, the trial judge had been correct to reject the expert evidence due to its deficiencies. Crucially, this was not an instance of the expert’s evidence being disbelieved, in which case it should be challenged in cross-examination, Asplin LJ said.

Further, the strict test applied by Martin Spencer J was incorrect, because it was not the function of a trial judge to rubber-stamp expert evidence.

Asplin LJ said: “If it were otherwise the court would be bound by an uncontroverted expert’s report… even if the conclusion was only supported by nonsense.”

She observed that challenging expert evidence in closing submissions was “a high-risk strategy”, but the defendant was entitled to submit that “an essential aspect of the case has not been proved to the requisite standard”; nor need it provide an opportunity for the other party to resolve the deficiencies in its evidence.

Agreeing, Lord Justice Nugee said: “As a matter of basic principle it is the function of trial judges to evaluate all the evidence before them in reaching their conclusions on the factual issues. That includes deciding what weight should be given to the evidence.”

Lord Justice Bean dissented. He said the rule that a witness must be challenged in cross-examination if they were alleged to be lying was “wider than that”, and applied both to lay witnesses and experts.

“It does not extend to every point of detail in a long witness statement: that is a matter for the discretion and common sense of the trial judge.

“But here [the expert] gave a clear conclusion on the very issue on which he was asked to give an opinion, namely that ‘on the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel’. This could and should have been challenged in cross-examination.”

He said a judge was “generally bound” to accept the evidence of an expert if was is not controverted by other expert or factual evidence, and the opposing party “could have cross-examined the expert on the point but chose for tactical reasons not to do so”.

Howard Stevens QC, Sebastian Clegg and Dan Saxby, instructed by Kennedys Law, acted for the appellant, with Robert Weir QC and Stephen Cottrell, instructed by Irwin Mitchell, for the respondent.

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