Griffiths vs TUI: Can a judge reject uncontroverted evidence?

Package holidays are a popular option for British families, with many finding them to be a convenient and cheaper option when travelling abroad. Most of these package holidays include meal options, further adding to the convenience. Unfortunately, in this particular case, Mr Griffiths, fell ill after staying at an all-inclusive hotel he had booked with the package holiday provider, TUI. Following a long-running legal battle, the case eventually ended up in the Supreme Court.

 

The case has important consequences for personal injury law, with the Supreme Court finding that Mr Griffiths did not receive a fair trial. It also answers an important question as to whether a judge can reject uncontroverted evidence.

 

Keep reading to learn more about the case and the consequences of the decision by the Supreme Court.

 

Background

 

 

In August 2014, Mr and Mrs Griffiths and their youngest son were staying at a resort in Turkey on a TUI package holiday when Mr Griffiths suffered from a serious gastric illness after eating at the hotel. He was then admitted to hospital and subsequently diagnosed with acute gastroenteritis. This left him with long-term health problems and permanent symptoms.

 

Following his admission to hospital, Griffiths issued proceedings against TUI. His claim was pursued on two bases:

 

1. The claiming of damages against TUI under the Package Travel, Package Holiday and Package Tour Regulations 1992

2. The pursuing of a claim under sections 4 and 13 of the Supply of Goods and Services Act 1982

 

Initial trial

 

Despite this, TUI’s defence saw them deny that Mr Griffiths’ illness had been caused by any food or drink that he had consumed at the hotel. This led to him obtaining medical reports from a gastroenterologist and a microbiologist to support his claim. TUI also had permission to rely on expert evidence from a microbiologist and gastroenterologist but failed to serve a report from the latter within the timeframe specified by the court. Furthermore, they decided they would not serve a report by a consultant microbiologist. This resulted in TUI going to trial without the support of expert evidence.

 

The judge held that the claimant had to satisfy the test in Wood v TUI [2017] EWCA Civ 11 (CA). That is to say, the burden lies on the claimant to be able to prove that the food or drink provided by the hotel as part of the package holiday caused their illness.

 

Despite evidence suggesting that Mr Griffiths fell ill as a result of consuming food or drink from the hotel, the Judge held that there were deficiencies in the report by the gastroenterologist and dismissed the claim.

 

High Court

 

This takes us to the High Court, which the Claimant appealed to. The High Court Judge had to decide whether Judge Truman, the judge in the previous trial, had made a mistake by rejecting the gastroenterologist’s report.

 

The two main questions that he proposed that should be asked were: first, whether a court is obliged to accept an expert’s uncontroverted opinion even if that opinion can properly be characterised as bare ipse dixit and, if not, what are the circumstances in which a court is justified in rejecting such evidence; and, second, whether, in any event, Professor Pennington’s report could in fact be properly described as no more than a bare ipse dixit entitling the learned judge to reject it despite being uncontroverted”.

 

This decision went in the favour of Mr Griffiths, with the High Court finding that the report by the gastroenterologist, Professor Pennington, was uncontroverted as TUI did not provide any evidence to challenge the findings of the initial report. This would later prove to be an important factor in the decision by the Supreme Court. The High Court’s decision led to TUI appealing the decision to the Court of Appeal.

 

Court of Appeal

 

Two of the Justices allowed the appeal. However the other, Lord Justice Bean, held that the view taken by Lady Justice Asplin that a party could reserve its criticisms of a report until closing submissions was wrong. He also held that the Claimant did not have a fair trial and made clear his view that courts should not allow litigation by ambush. Finally, he also disagreed with Lady Justice Alpin that a party should be able to wait until closing submissions to reserve its criticisms of a report. As a result of Lord Justice Bean’s decision, permission was granted to appeal the decision to the Supreme Court.

 

Supreme Court decision

 

Now we come to the focus of this article, the Supreme Court decision. In a unanimous decision, the Supreme Court found in favour of Mr Griffiths and held that his trial had been unfair. They found that both the trial judge and the majority of the Court of Appeal had erred significantly.

 

While the trial judge had failed to consider the effect of TUI’s failure to cross-examine Professor Pennington on the fairness of the trial, the Court of Appeal had limited the “scope of the rule to challenges of the honesty of a witness”. Lord Hodge ruled that the expert report of Professor Pennington was sufficient and Mr Griffiths had established his case based on the balance of probabilities and the evidence provided.

 

The Supreme Court referred to Phipson on Evidence, a leading work on civil and criminal evidence, in making their decision. Phipson on Evidence sets out the need for a party to “challenge on cross-examination the evidence of any witness of the opposing party if it wishes to submit to the court that that evidence should not be accepted”.

 

Lord Hodge further held that the the advancement of detailed criticisms of the report in TUI’s submissions was not fair in the absence of a proper challenge on cross-examination. He also found that it was a failure by the trial judge to accept such submissions. Furthermore, Lord Hodge held that it was not the court’s business to investigate admitted facts, such as the expert report provided by Professor Pennington.

 

Our comments

 

This is a significant ruling by the Supreme Court which emphasises the importance of a fair trial. The evidence was enough for Mr Griffiths to win despite not being ‘perfect’ in the eyes of the court. Furthermore, the failure of TUI to challenge Professor Pennington’s report meant that it was unfair for TUI to both advance its criticisms and for the trial judge to accept them. This judgement will be welcomed by travel lawyers and those working within personal injury law by ending the ability of large corporations by TUI to attack expert witness reports without proper cross examination.

 

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