The Supreme Court has now handed down its long-awaited judgment in Griffiths v TUI [2023] and clarified how to treat uncontroverted evidence.

As all in the industry will know, this appeal, although it concerned a holiday sickness claim also has a wide-reaching effect on all those involved in litigation.

The Supreme Court concluded that subject to some exceptions, evidence that is not agreed must be challenged by cross-examination.

A short reminder of the facts, Mr Griffiths suffered a serious stomach upset while on an inclusive package holiday booked with TUI.  At trial, he relied on the evidence of an expert who concluded that on the balance of probabilities the food and drink served at the hotel was the cause of his illness.

The expert evidence on paper was not contested by TUI and they did not seek to have the expert cross-examined.  However, in Counsel’s subsequent submissions, he sought to raise deficiencies in the expert's report arguing that the claimant had failed to prove his case.  The trial judge agreed and dismissed the claimant’s claim.

Following a series of appeals, the Supreme Court asserted:

In “the absence of a proper challenge on cross-examination, it was not fair for TUI to advance the detailed criticisms of Professor Pennington’s report in its submissions or for the trial judge to accept those submissions”

Therefore the Claimant had not had a fair trial and it was held that the trial judge having accepted the claimant’s evidence meant that the claim should have succeeded.

However, it is important to recognise that this decision does not mean that in every case an opposing party will need to cross-examine an expert (or witness) on their evidence and indeed the Supreme Court helpfully set out some examples where this would not be necessary:

•        that the matter challenged is insignificant so fairness does not require there to be an opportunity to explain;

•        the evidence may be manifestly incredible;

•        there may be a bold assertion of an opinion in an expert's report without       any reasoning to support it;

•        there may be an obvious mistake on the face of an expert report;

•        the evidence of fact may be contrary to the basis on which the expert expressed their view; or

•        an expert has been given sufficient opportunity to respond to criticism of,      or otherwise clarify their report, such as through written questions.

Here at Box Legal we have been offering after the event legal expense insurance since 2004 and have a wealth of experience. We have competitively priced ATE insurance policies available for all types of personal injury claims and can also arrange legal expense insurance cover for non-personal injury claims such as housing disrepair and financial mis-selling.

The number and variety of cases we arrange cover for is always increasing and so please contact us to discuss any after the event insurance requirements. We are happy to discuss and develop ATE insurance for case types we do not already insure.

If you would like to speak to us or obtain further information then please call on 0870 766 9997, or email info@boxlegal.co.uk