Supreme Court: “Not fair” to challenge expert evidence only in closing

Hodge: Trial judge and CA erred in law in significant way

It was “not fair” for the defendant in a personal injury claim to only challenge the claimant’s expert evidence during its closing submissions, the Supreme Court ruled yesterday.

It overturned the Court of Appeal, which had held that judges were not required to accept ‘uncontroverted’ – ie, unchallenged – evidence from an expert witness without further analysis.

The claimant in TUI UK Ltd v Griffiths [2023] UKSC 48 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 from Professor Hugh Pennington 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 was uncontroverted in this way, it should be accepted by the court, unless there were 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.

But a majority of the Court of Appeal disagreed, with Lady Justice Asplin saying 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.

Giving the unanimous decision of the Supreme Court, Lord Hodge said: “In the absence of a proper challenge on cross-examination it was not fair for TUI to advance the detailed criticisms of Professor Pennington’s report in its submissions or for the trial judge to accept those submissions.

“Both the trial judge and the majority of the Court of Appeal erred in law in a significant way. The trial judge did not consider the effect on the fairness of the trial of TUI’s failure to cross-examine Professor Pennington.

“The majority of the Court of Appeal did, but they erred in limiting the scope of the rule to challenges to the honesty of a witness. As a result, neither properly addressed the application of rule to the facts of this case.

“In my view, in agreement with Bean LJ’s powerful dissent in para 99 of his judgment, Mr Griffiths did not have a fair trial.”

The Supreme Court was left to make its own assessment of the evidence and concluded that Mr Griffiths had established his case on the balance of probabilities.

Setting out the principles underlying the core ruling, Lord Hodge declared that the general rule in civil cases “is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted”.

That rule extended to both witnesses as to fact and expert witnesses, and its purpose was to ensure the trial was fair.

At the same time, Lord Hodge said, it was “not an inflexible rule” and its application depended on the circumstances of the case, such as where it would be disproportionate to cross-examine at length or the trial judge has set a limit on the time for cross-examination.

There were also circumstances where it would not apply, such as where the evidence of fact was “manifestly incredible, and an opportunity to explain on cross-examination would make no difference”, or there was “a bold assertion of opinion in an expert’s report without any reasoning to support it”, described as a bare ipse dixit.

Lord Hodge added: “But reasoning which appears inadequate and is open to criticism for that reason is not the same as a bare ipse dixit.”

TUI had expressed concern about the impact of resolving cases if the appeal were to be upheld, the justice noted.

“The conclusion I have reached does not mean that in most cases of modest value when a claimant presents an inadequately reasoned expert report, a defendant will inevitably have to obtain a detailed expert report and require a claimant’s expert to attend for cross-examination.

“A defendant may be able to adopt more economic ways of testing the expert’s evidence. It is important and consistent with the ethos of the CPR that there be a proportionate use of resources in the pursuit and defence of such claims.”

This could be through focused part 35.6 questions, but here TUI’s questions “did not give adequate notice of the challenges it ultimately made”.

“Where the defendant has expert advice, a meeting of experts to discuss their positions can lead to a joint report restricting the issues in dispute. In any event, a focused cross-examination making the challenge and giving the expert the opportunity to explain his or her report and CPR part 35.6 answers need not be long.

“Further, as Dr Julian Fulbrook observed in his insightful case note on the Court of Appeal’s judgment (Journal of Personal Injury Law (2022), C55-C60), if the court were to sanction the detailed critique and demolition of an uncontroverted expert report in closing submissions, that would undermine the CPR’s arrangement for agreeing expert reports in advance of trial and narrowing down the areas of dispute.

“It might also encourage experts defensively to produce prolix reports and add to the cost of the legal proceedings.”

Jatinder Paul, the partner at Irwin Mitchell representing Mr Griffiths, said: “Whilst our objective has always been to secure justice for Peter, and the compensation that he deserves, we are pleased that this landmark judgment has also provided guidance to the courts on how to grapple with unchallenged expert evidence, and to ensure fairness for all parties at trial.”

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