In a unanimous decision, the Supreme Court in Griffiths v TUI UK Ltd [2023] UKSC 48 overturned the Court of Appeal. Lord Hodge gave the only judgment, with which the rest of the Justices agreed. A result that might be enough to make the Defendant feel rather ill, if it were an actual human rather than a company of course.

In short, the Supreme Court held that in this case, an emphasis to which I will return further, the Claimant had not had a fair trial. It was not fair because of the way the Defendant approached the otherwise uncontroverted expert evidence of the Claimant on causation. That approach the judge, at first instance, wrongly acceded to.

A short reminder of the facts, Mr Griffiths went on holiday to Turkey, had a Burger King at Birmingham Airport on the way, whilst there ate at the hotel save for one meal out, fell really rather poorly, had some stool samples taken (of the faecal kind rather than for any furniture shopping) and brought a claim against the Defendant package holiday organiser. The Claimant relied upon a report from Professor Pennington for the purposes of causation, a report which was criticised by the trial judge and called “minimalist” in the High Court by Martin Spencer J (who still found for the Claimant on the first appeal). The trial judge, as noted, acceded to the Defendant’s case, expressed for the first time in a skeleton argument served the afternoon prior to trial, that for various reasons in the way Professor Pennington set out his opinion on causation, such as how he dealt with other potential sources of contamination, meant the Claimant could not succeed. The judge dismissed the claim accordingly.

The Supreme Court confirmed that this approach was not open to the Defendant. The report was uncontroverted in relation to the “matters which were the objects of criticism in counsel’s submissions”, per [71]. It did not otherwise suffer flaws in the factual basis for the opinion or contain any obvious inconsistent or illogical assertions. In “the absence of a proper challenge on cross-examination, it was not fair for TUI to advance the detailed criticisms of Professor Pennington’s report in its submissions or for the trial judge to accept those submissions” per para [75]. Accordingly, the Claimant had not had a fair trial. On the basis of the facts found by the judge, the judge having accepted the Claimant’s factual evidence, the Claimant should have succeeded.

Of course, it remains the case that the opposing party need not in every trial cross-examine or challenge an expert, or indeed any witness (the Supreme Court having made clear in Griffiths that the same rules apply), on every aspect of their evidence. The Supreme Court at paragraphs 61-68 set out various examples of when it is not necessary, including:

i.  It is collateral or insignificant matter (causation in a holiday sickness trial clearly not being either of those things);

ii.   The evidence is manifestly incredible;

iii.  Bare ipse dixit (a bold assertion without any reasoning to us non-Latin readers);

iv. An obvious mistake, inconsistency or illogical matter on the face of the report;

v.   Where the factual basis of an expert’s report is not accepted;

vi.  Earlier sufficient opportunity to respond to critiques of a report, such as a failure to adequately answer Part 35 questions, made the nature of the challenge obvious;

vii.  A failure to comply with Part 35, although a party would be wise to raise this with the court prior.

Fundamentally, at the root of the Defendant’s failure in the Supreme Court was what happened in the litigation prior, or rather the failures therein. I set out the whole of paragraph 71 here to show the litany of errors:

“In assessing the fairness of the trial in this case it is important to have regard to the approach which TUI’s legal team adopted in response to the claim. TUI in its defence, put Mr Griffiths to proof of his claim. TUI chose not to lodge the report of an expert microbiologist, which it obtained. That report might have put forward a case on causation which differed from that of Professor Pennington. TUI failed to lodge the report of their expert gastroenterologist in a timely manner and called no witnesses as to fact. The CPR Pt 35.6 questions, which I have set out in para 14 above, were not clearly focused on the matters which were the objects of criticism in counsel’s submissions and did not put Professor Pennington on notice of those criticisms. TUI chose not to request that Professor Pennington be made available for cross-examination. TUI’s challenge to his evidence was not intimated to Mr Griffiths’ legal team until the submission of its skeleton arguments on the eve of the trial, by which time it would have been too late for them to seek to have him attend to give evidence.”

I return to the point I made earlier, to which I promised to return. Much of what the Supreme Court set out as points of principle or legal analysis on what must be put to a witness is hardly what many lawyers would call controversial. It simply went awry in this case, in no small part to the way the litigation unfolded. It is, I think I can say with some confidence, highly unlikely to mark any change in direction to the how expert evidence more generally or holiday sickness claims more specifically are dealt with.

This case is about the undoubtedly important issues of the fairness of trial and the correct approach to uncontroverted expert evidence. However, in no small part it is also an important lesson; when your litigation strategy takes a holiday, you may find yourself feeling rather sick at the end of it.

Alex Mellis is a Personal Injury barrister at No5 Barristers’ Chambers.