Griffiths v TUI UK Ltd

An uncontroverted expert report is not automatically binding. The court may reject a report that is literally a bare ipse dixit, but must not assess an uncontroverted report as though it were controverted evidence. The court’s task is limited to deciding whether the report substantially satisfies the minimum requirements in the Practice Direction to CPR Part 35. Deficiencies in reasoning ordinarily affect weight, rather than admissibility, and become material to weight where the report is challenged by contrary evidence or cross-examination. In holiday gastroenteritis claims, the absence of an outbreak is not necessarily fatal where causation is established through pathogen evidence and expert analysis. It is of greater significance where the claimant relies principally on the fact of illness and the number of similarly affected guests.

The claimant appealed against the dismissal of his claim for damages arising from gastroenteritis suffered during an all-inclusive holiday in Turkey. The County Court accepted his factual evidence but rejected the uncontroverted report of Professor Pennington on causation, finding that it lacked sufficient reasoning and failed adequately to address alternative sources of infection.

The appeal concerned whether a court may reject uncontroverted expert evidence because it considers the reasoning incomplete or insufficient, and whether the guidance in Wood v TUI Travel Plc required proof of an outbreak or the exclusion of every alternative cause.

1. Appeal allowed. Judgment was entered for the claimant.
2. An uncontroverted expert report may be rejected if it is literally a bare ipse dixit, such as a conclusion unsupported by any disclosed basis. Otherwise, the court must apply a narrower approach than it would when evaluating controverted evidence.
3. Where the report is truly uncontroverted, the court should determine only whether it substantially complies with the minimum requirements of the Practice Direction accompanying CPR Part 35. It should not conduct a full weighing exercise against competing expert or factual evidence. Substantial compliance included identifying the expert’s qualifications, materials, instructions, salient facts, relevant alternative causes, conclusions and the required statements of duty and truth.
4. A lack of detailed reasoning may reduce the weight of a report if it is controverted. It does not, by itself, justify refusing to accept an otherwise compliant uncontroverted report as evidence. The defendant had not challenged the factual basis of Professor Pennington’s opinion, called contrary expert evidence, or sought his cross-examination.
5. The observations in Wood v TUI Travel Plc were treated as guidance directed principally to cases relying on illness alone. The court endorsed a distinction between a quantitative case, where the absence of similarly affected guests may be fatal, and a qualitative case, where laboratory evidence and expert analysis may establish causation without an outbreak.
6. Professor Pennington’s report was not a bare ipse dixit. It identified the likely pathogen, considered other pathogens and possible causes, addressed incubation periods and the claimant’s meals, and stated the conclusion that the hotel food or drink was the probable source. The trial judge was therefore wrong to reject it for the deficiencies identified.
7. The time for applying to the Court of Appeal for permission to appeal was extended to 21 September 2020.

• High Court (Queen's Bench Division): allowed the claimant’s appeal from the order of HHJ Truman dated 4 September 2019 and entered judgment for the claimant.
• County Court of Birmingham: dismissed the claim for damages arising from gastric illness suffered during the holiday.