The Supreme Court in TUI UK Ltd v Griffiths  UKSC 48 has given guidance on the approach the Courts should take on the question of expert evidence at trial, where Defendants choose not to cross-examine the Claimant’s expert(s).
TUI UK Ltd v Griffiths  UKSC 48
The Griffiths family had gone on a TUI package holiday to Turkey. Mr Griffiths became ill two days into the trip. At trial Mr and Mrs Griffiths had uncontested evidence as to fact, and the Claimant also called an expert who opined that on a balance of probabilities the food or drink served at the hotel was the cause of acute gastroenteritis causing hospitalisation. Stool sample analysis showed multiple pathogens, both parasitic and viral.
The Defendant did not call its own expert evidence and did not cross-examine the Claimant’s expert at trial. TUI failed to serve a report from a gastroenterologist in time, and chose not to serve expert evidence from a microbiologist. TUI sought permission to rely on expert evidence served late but the Court refused such permission. TUI lodged witness statements of fact and intended them to give evidence by video link, but in the event they were not called to the trial, and their evidence was accordingly discounted.
TUI did not seek to cross-examine the Claimant’s expert evidence, which was uncontroverted in the sense that it did not conflict with any other expert evidence and was not challenged in cross-examination. TUI had asked a number of Part 35 questions of the Claimant’s expert which were answered.
The trial judge found that the Claimants had not proven their case. The Claimant’s expert was criticised as being incomplete in his explanations and for a failure to expressly discount other possible causes of the illness.
TUI’s trial counsel made a number of challenges in submissions about the Claimant’s expert’s report. They were (i) that there had been a failure to discount the occurrence of two separate infections and a meal outside the hotel as the possible cause of the second, (ii) the absence of an explanation why the illness was caused by food or drink from the hotel, (iii) a failure to exclude a meal in town or in the airport as possible causes, (iv) a failure to comment on health and hygiene procedures in the hotel, and (v) a failure to discount alternative methods of transmission of the illness.
The trial judge also criticised the report for failing to explain why adenovirus or rotavirus should be discounted, and that other possible causes had not been excluded such as air conditioning and a nappy in the swimming pool.
The Defendant appeared to find comfort in the principle that the burden of proof is on the Claimant, and that it can sit back and do nothing and make whatever submissions it chooses in closing at the trial.
A fundamental requirement
However, the Supreme Court ruled that a fundamental requirement is for a fair trial. In the words of Lord Hodge (with whom the other 4 Lords agreed in a unanimous judgment), “It is the task of a judge in concluding a trial in an adversarial system to make sure that the trial is fair. It is the task of the judiciary in developing the common law, and the makers of the procedural rules, to formulate rules and procedures to that end. On such long established rule is usefully set out in the current edition of Phipson on Evidence […]: ‘In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.’ This statement is supported by case law […] I am satisfied that the statement in Phipson is correct and […] summarises a longstanding rule of general application […] It is a matter of the fairness of the legal proceedings as a whole.”
Lord Hodge stated:
“In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:
(i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.
(ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.
(iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.
(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.
(v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.
(vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.
(vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.
(viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.” (A challenge collateral or insignificant, evidence manifestly incredible and cross examination would make no difference, expert conclusion without reasoning, obvious mistake, fact contrary to basis for expert opinion, expert has had sufficient opportunity to respond, failure to comply with PD 35).
In the case at hand, TUI did not put the Claimant’s expert on notice on their criticisms. They did not request he be available for cross-examination. The challenges were not intimated until a skeleton argument on the eve of trial.
The Supreme Court found “Both the trial judge and the majority of the Court of Appeal erred in law in a significant way. The trial judge did not consider the effect on the fairness of the trial of TUI’s failure to cross-examine [the Claimant’s expert].”
The Supreme Court considered Mr Griffiths had established his case on a balance of probabilities.
It can be tempting for Defendants to be lulled into a sense of security by the perception that the burden of proof is on the Claimant and that the Defendant can therefore ‘do nothing’ and put the Claimant to proof.
While the burden of proof is generally on a Claimant, the English Court process has evolved over time with a view to ensure fair trials and justice, and it is unjust for a Defendant to ‘do nothing’ and then ‘ambush’ a Claimant with submissions at trial.
On the contrary, submissions should be put to the Claimant’s witnesses, and those witnesses given a fair opportunity to respond. That is how fairness and justice is achieved in an adversarial system.
Defendants will be well advised to adopt a level of engagement beyond simply sitting back and doing nothing. A challenge mounted for the first time at trial is likely to fail.