TUI UK Ltd v Griffiths

In civil proceedings, a party must ordinarily challenge by cross-examination any material evidence of an opposing witness which it intends to invite the court to reject. The rule applies to factual and expert evidence, and to challenges based on dishonesty, inaccuracy or other inadequacy.

The rule is flexible. Its governing criterion is the overall fairness of the trial. It may yield where the point is insignificant, the evidence is manifestly incredible, an expert opinion is a bare assertion or obviously defective, or the witness has already had a sufficient opportunity to answer a clearly articulated criticism.

A court may evaluate expert evidence, but it acts unfairly if it accepts substantial criticisms first advanced in closing submissions after the opposing party chose neither to cross-examine the expert nor otherwise to give an adequate opportunity to respond.

Mr Griffiths contracted gastroenteritis during an all-inclusive package holiday and claimed damages from TUI UK Ltd. His factual evidence was accepted. His microbiologist attributed the illness, on the balance of probabilities, to contaminated food or fluid consumed at the hotel. TUI called no factual or expert evidence, did not require the microbiologist to attend for cross-examination, and advanced detailed criticisms of his written reasoning only at the close of the trial. The County Court accepted those criticisms and dismissed the claim.

The High Court allowed Mr Griffiths’ appeal: [2020] EWHC 2268 (QB). By a majority, the Court of Appeal restored the dismissal, holding that a judge could evaluate and reject uncontroverted expert evidence: [2021] EWCA Civ 1442; [2022] 1 WLR 973. Bean LJ dissented.

The Supreme Court considered the scope of the fairness rule requiring material challenges to evidence to be put in cross-examination, its application to expert reasoning, and whether Mr Griffiths had received a fair trial.

1. Appeal allowed unanimously. Lord Hodge gave the judgment, with which Lord Lloyd-Jones, Lord Briggs, Lord Burrows and Lord Stephens agreed. In civil proceedings, a party must generally challenge by cross-examination the evidence of an opposing witness on any material point which it wishes to submit should not be accepted. This longstanding rule applies to factual and expert witnesses. Its purpose is to secure fairness to the party adducing the evidence, fairness to the witness, and the integrity of the court’s fact-finding process by allowing explanation or clarification.

2. The rule extends beyond attacks on honesty or character. It applies where evidence is impugned for inaccuracy or other inadequacy, including criticism of an expert’s reasoning. It remains flexible because overall trial fairness is the governing criterion. Cross-examination may be unnecessary where the point is collateral or insignificant; factual evidence is manifestly incredible; expert evidence is a bare unsupported assertion; an obvious mistake, illogicality or inconsistency appears on the report’s face; the expert proceeded on facts or assumptions which the evidence did not establish; the witness already had a sufficient opportunity to answer the criticism; or a serious failure to comply with the expert-evidence requirements justifies that course.

3. An expert must disclose the reasoning supporting an opinion. A bare ipse dixit is worthless. A terse or inadequately reasoned report is not thereby a bare assertion. The judge retains responsibility for evaluating expert evidence, but the adversarial process and the requirements of fairness govern how a party may invite its rejection.

4. Professor Pennington’s report was terse and left relevant questions unanswered, but it identified the pathogens, incubation periods, competing diagnoses and circumstances of consumption supporting his causation conclusion. It was neither irrational nor a bare ipse dixit. TUI’s written questions did not clearly put the criticisms later made, and TUI chose not to cross-examine. No recognised exception applied. It was therefore unfair for TUI to advance, and for the trial judge to accept, the detailed criticisms first made in closing submissions.

5. The trial judge and the Court of Appeal majority erred in law. The latter wrongly confined the rule to challenges to honesty. On the accepted factual evidence, the uncontroverted expert report and its answers to written questions, Mr Griffiths proved causation on the balance of probabilities. The Court invited written submissions on the appropriate form of order.

1. United Kingdom Supreme Court: Allowed Mr Griffiths’ appeal unanimously from [2021] EWCA Civ 1442; [2022] 1 WLR 973.
2. Court of Appeal: By a majority, Asplin LJ and Nugee LJ allowed TUI’s appeal and restored the dismissal of the claim; Bean LJ dissented: [2021] EWCA Civ 1442; [2022] 1 WLR 973.
3. High Court: Martin Spencer J allowed Mr Griffiths’ appeal from the County Court: [2020] EWHC 2268 (QB).
4. County Court: HHJ Truman dismissed the claim after concluding that the expert evidence did not establish causation on the balance of probabilities.