The eagerly awaited judgement of the Court of Appeal in the case of Griffiths v TUI  EWCA Civ 1442 was handed down on Thursday 7th October 2021.
Mr Justice Martin Spencer’s judgement in this case last year meant that claimants were able to argue that medical reports in food poisoning claims were uncontroverted and should therefore be accepted. In light of this judgement defendants began making applications, seeking to cross-examine medical experts at trial or to obtain their own expert evidence.
In this case the claimant booked an all inclusive package holiday to Turkey through the defendant and became unwell during the holiday with symptoms of gastric illness. He was admitted to hospital where he was diagnosed with acute gastroenteritis.
Legal proceedings were issued and liability was denied. Although the defendant was granted permission to obtain its own expert evidence from a consultant microbiologist and a gastroenterologist they failed to serve either reports in time. The defendant subsequently made an application for relief from sanctions but this was unsuccessful, leaving them with no expert evidence to rely upon at trial.
At first instance the trial was heard before Judge Truman, who accepted the claimant’s evidence but considered there were deficiencies in the claimant’s expert report. The Judge described Professor Pennington’s report as “minimalist” and in rejecting his evidence the claim was dismissed.
The claimant appealed the decision and the appeal was heard by Mr Justice Martin Spencer. Central to the appeal was the question of whether Judge Truman erred in rejecting Professor Pennington’s report in the absence of any other evidence to the contrary.
Mr Justice Martin Spencer considered that Professor Pennington’s report was uncontroverted as the defendant had not attempted to challenge the factual basis of his report and had not taken any steps by way of cross-examination to undermine his evidence.
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 Part 35 CPR, and therefore the judge “was entitled to conclude that Professor Pennington’s evidence was insufficient to satisfy the burden of proof”.
As a result of this appeal there will no longer be a requirement to “controvert” a claimant’s evidence and it will once again be open to defendants to challenge an expert’s report at trial without having to obtain its own evidence.
It is clear from this appeal that to avoid any problems occurring at trial it is now more important than ever for a claimant’s solicitor to carefully read and check the contents of an experts report.
If the expert has not provided an explanation as to how his opinion has been reached, although CPR Practice Direction 35 does not state expressly that reasons are necessary, if the court is to be satisfied, the expert should be asked to provide detailed reasoning to support his conclusion.
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