The Court of Appeal yesterday handed down judgment in the case of Griffiths v TUI (UK) Limited  EWCA Civ 1442 (CA), in what stands to be an important decision for defendants.
Allowing the appeal by majority, the Court of Appeal essentially held that there is no rule that a court is bound to accept uncontroverted expert evidence which complies with CPR PD 35 and therefore the Judge “was entitled to conclude that Professor Pennington’s evidence was insufficient to satisfy the burden of proof on Mr Griffith in relation to causation for the cogent reasons she gave. It is not for this court to interfere, nor was the Judge right to do so.” . A link to the judgment can be found here.
The Court considered both previous decisions from first instance and appeal. At first instance, the Judge concluded that the microbiology evidence provided in support of the claim did not sufficiently show that Mr Griffiths’ illness was caused by contaminated food or drink supplied by the hotel and did not satisfy the requirements set out in Wood v Tui. Mr Griffiths succeeded on appeal, with the Judge considering that the microbiology evidence was “uncontroverted”.
Lady Justice Asplin noted in her decision that “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. It all depends upon all of the circumstances of the case, the nature of the report itself and the purpose for which it is being used in the claim.” . Asplin LJ went on to state that in her judgment, Judge Truman at first instance did not decide that the report was ‘wrong’ in the sense of rejecting his conclusions but that it was simply insufficient to prove causation  and that the authorities quoted referred mainly to credibility issues of the medical expert, which were again not in issue.
In support, Lord Justice Nugee, agreed that the appeal should be allowed and stated that “I see nothing in the authorities that suggests that that obligation to assess the evidence falls away if it is "uncontroverted"; uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole. Uncontroverted evidence may be compelling, but it may not be: it may be inherently weak or unhelpful or of little weight for other reasons”. .
Mr Griffiths became unwell whilst on an all-inclusive holiday in Turkey in August 2014, that had been booked with Tui. He was admitted to hospital and diagnosed with acute gastroenteritis with a stool sample testing positive for parasitic and viral pathogens.
What does this mean now?
This is a positive outcome for defendants confirming that there will no longer be a requirement to “controvert” a claimant’s evidence, and it will once again be open to them to challenge an expert’s report at trial, without obtaining its own evidence.
The Court of Appeal refused permission for Mr Griffiths to appeal to the Supreme Court. However, given the dissenting comments of Lord Justice Bean’s stating that, “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.” , this should be taken with a note of caution and may result in permission still being granted hereafter.