Court of Appeal rules that uncontroverted expert evidence can be rejected in same way as controverted expert evidence

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 QC and Stephen Cottrell appeared for the claimant, instructed by Jatinder Paul of Irwin Mitchell, Birmingham. Permission to appeal to the Supreme Court is being sought.

To read the judgment, please click here

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