On 7 October 2021 the Court of Appeal handed down its judgment in Griffiths v TUI [2021] EWCA Civ 1442 (CA).
In the decision handed down by the High Court last year in Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB), Spencer J held that provided an expert report complies with CPR Part 35 and there is no expert evidence to challenge that evidence, if the report cannot be factually undermined in cross-examination, then that report should be accepted by the court.
As a result of the High Court decision Claimants tried to argue that medical reports in gastric illness claims which were uncontroverted should be accepted, and Defendants could no longer rely on criticising a Claimant's expert report to successfully defend a claim.
The recent Court of Appeal judgment allowed the appeal made by TUI UK Ltd.
In the Court of Appeal decision, Lady Justice Asplin stated that there was no rule that an expert's report which is un-controverted, and which complies with Part 35 CPR cannot be challenged in submissions and thereafter rejected by the Judge. She also stated that it was permissible to challenge expert evidence in closing submissions, even if this was a high-risk strategy. She noted
"…the Judge cannot be prevented from considering the quality of such evidence in order to determine whether the burden of proof is satisfied just because it is uncontroverted. As Judge Truman stated, the court is not a rubber stamp. If it were otherwise, the court would be bound by an uncontroverted expert's report which satisfied CPR PD 35, even if the conclusion was only supported by nonsense".
Lady Justice Asplin also noted that it was not for the opposing party to make good deficiencies in the Claimant's evidence. She noted that it is for the party who files the evidence in support of his case to make sure that all relevant matters are covered and that the content of the report is sufficient to satisfy the burden of proof on the issue to which it is directed.
The result of the Court of Appeal's decision is of course positive for Defendants in gastric illness claims, and arguably in any other claims which rely on expert evidence. Following this judgment, Defendants will be able to challenge Claimant's expert evidence at trial without obtaining their own evidence (as was the position pre Griffiths).
However, this is unlikely to be the end of the story:
Lord Justice Bean gave a strong dissenting judgment and stated,
"In my view Mr Griffiths did not have a fair trial of his claim. The courts should not allow litigation by ambush. I would therefore have dismissed TUI's appeal".
We must now expect a potential further appeal to the Supreme Court to see if the position changes yet again. We would anticipate that in light of this decision, very few current gastric illness claims will settle before trial. That is not good for Claimants who have valid claims for serious injury and await justice, and does not make it straightforward to give advice as to whether claims will be successful at this time.
