Supreme Court rules on uncontroverted evidence

The trial in Griffiths vs TUI was considered unfair and the Supreme Courts have stated that courts should generally accept uncontroverted evidence.

On the 29^th November, the Supreme Court issued their judgment on the case of Griffiths vs TUI.

Th case, which concerns a claim made by Mr Griffiths that he contracted a serious stomach upset which has left him with long term problems whilst on his all-inclusive holiday with TUI, has been moving through the courts since his initial trial in 2019.

In the initial trial, the claimant put forward expert evidence which opined that, on the balance of probabilities, the food or drink served at the hotel was the cause of Mr Griffiths’ stomach upset.

However, TUI did not introduce any expert evidence to contradict this, nor did they request that the expert attend court for cross-examination.

Instead, as part of their submission, they criticised the expert’s report for completeness. And despite the evidence not being contradicted, the trial Judge dismissed the evidence, and the claim was dismissed.

Since then, the decision has been appealed in the High Court (where there was initial consideration of how uncontroverted evidence should be treated resulting in the appeal being allowed) and the Court of Appeal (where the court found that the court was not bound to accept an expert’s uncontroverted evidence, and it was open to a party to challenge the opponent’s expert evidence for the first time in closing submissions).

However, this judgement from the Supreme Court sets out clear propositions as to the court’s approach to controverted evidence:

The judgement states:

70. 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.

In considering how this applied to the case of Griffiths vs TUI, the Supreme Court identified that:

• The defence chose not to lodge the report of an expert microbiologist that they had obtained, failed to lodge the report of their expert gastroenterologist in timely manner, and called to witnesses as to fact.
• They chose not to cross-examine the claimant’s expert and did not highlight their intent to challenge the expert evidence until the night before trial.
• Whilst the report could have been better and included more expansive reasoning, it was far from being sub-standard to the point that it should be dismissed.
• None of the exceptions that the Supreme Court had identified could be applied to this case.

The Supreme Court therefore concluded that Mr Griffiths did not have a fair trial.

The full judgment is well worth a read for any lawyers working with expert evidence and indeed for those giving expert evidence.

However, the key points are:

• For lawyers – Do not assume that you can get the other side’s expert evidence dismissed by simply questioning the credibility of the report in your submission. You should be considering submitting expert evidence or, at the very least, cross-examining the expert. The courts should generally accept uncontroverted evidence.
• For experts – Do not leave yourself open to criticism by submitting a report which does not consider both the range of opinion and the reasoning for your opinion.