Claimant in Griffiths v Tui (UK) Ltd given permission to appeal to the Supreme Court
The Claimant in Griffiths v Tui (UK) Ltd, represented by Robert Weir KC and Stephen Cottrell, has been granted permission to appeal to the Supreme Court.
The appeal will raise important issues about the need for a party who disagrees with the evidence of another party’s expert to challenge that evidence by obtaining its own expert evidence or by cross-examining the expert.
In Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, the majority of the Court of Appeal (Asplin LJ and Nugee LJ) held that the trial judge in a holiday sickness claim had been entitled to dismiss the claim where the only evidence on the issue of causation came from an expert, Professor Pennington, whose evidence supported the link between the claimant’s illness and the food he had eaten on the all-inclusive holiday. That was despite the fact that: (a) Professor Pennington’s report was the only expert evidence on this issue, there being no other expert or factual evidence to contradict it; and (b) the defendant did not seek permission to cross-examine Professor Pennington at trial. His evidence was, therefore, uncontroverted.
Per the majority, the court was entitled to dismiss the claim based solely on the court’s assessment that the reasoning in the report was inadequate. The court was entitled, indeed required, to assess the weight to be accorded to expert evidence where it was uncontroverted as much as where it was controverted.
Bean LJ, in a powerful dissenting judgment, considered that, as a matter of fairness, where the defendant chose not to adduce any expert evidence or to cross-examine the expert, the court was generally obliged to accept the expert evidence. What happened here, with the claim being dismissed based upon defence counsel’s closing submissions, was trial by ambush. It was not fair to the claimant.
Robert Weir KC and Stephen Cottrell are instructed by Jatinder Paul of Irwin Mitchell, Birmingham.
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