The recent judgement of Spencer J in Griffiths v TUI UK Limited  has provided important guidance on whether it is the court’s role to examine the contents of an expert’s report where it is undisputed.
The decision was an appeal against the judgement of HHJ Truman sitting at the County Court in Birmingham in September 2019.
The claimant in the original case had booked a package holiday at the defendant’s hotel from the 2nd to the 16th August 2014. He gave evidence that he suffered an episode of gastric illness two days into the holiday which although it had improved, did not completely fully resolve and which led to a worsening of his condition on the 10th August 2014.
In support of his case the claimant commissioned a report from Professor Pennington which was described as “minimalist”. The circumstances were unusual in that the defendant neither obtained its own expert medical evidence nor cross examined Professor Pennington at trial.
HHJ Truman at trial accepted the evidence of the claimant and his wife and there was no finding that Professor Pennington’s report was inaccurate. Therefore, causation was the only issue to be dealt with and the outcome of the claim rested on the interpretation of Professor Pennington’s report.
HHJ Truman in considering the case of Wood v TUI travel Plc  was highly critical of Professor Pennington’s report and responses to Part 35 questions and dismissed the claim on the basis that his evidence was insufficient.
Historically, since the case Wood v TUI Travel many claims have been dismissed even where the judge accepts the claimant was unwell but is not satisfied that the expert has considered and/or has excluded other any other alternative cause for the illness. When causation is clearly in issue it is necessary for the medical expert to provide some reasoning for their conclusions. In this case importantly Professor Pennington did not give an opinion as to why a pre-flight or local town meal should be excluded as a cause of the claimant’s illness.
On appeal the claimant’s solicitors, Irwin Mitchell appealed the decision on the basis that where expert evidence is undisputed, subject to exceptional circumstances it should be accepted by the Court.
The Court allowed the appeal and in doing so it considered the proper approach to “uncontroverted” expert evidence; holding that once the report was “uncontroverted” all the court needed to do was decide whether it fulfilled the minimum standard set out in CPR PD 35. Further, the Court was not entitled to subject an uncontroverted report to the same kind of analysis and critique as it if was evaluating a controverted or contested report where it was essential to decide whether it was to be preferred to other evidence, such as an expert on the other side.
However, it remains the case that the court is entitled to reject an uncontroverted report where it amounts to a bare ipse dixit (assertion without proof). If this is the case it is always open to a defendant to apply for summary judgement even before the matter goes to trial on the basis that the claimant’s case has no prospect of succeeding.
So what role should a solicitor play if any to avoid the Court finding that the claimant’s case is without merit or to disallow the evidence where it is not compliant with the provisions of CPR Part 35? Clearly it is an important task of any solicitor to consider the medical report once obtained and to carefully assess whether these issues have been adequately dealt with and if not, to ask the expert to rectify this at an early stage or if the permission of the court is required, to amend the report to ensure this is done promptly.
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