Court of Appeal’s approach towards ‘uncontroverted’ expert evidence

Today, the Court of Appeal handed down its judgment addressing a fundamental question: what is the proper approach of the court towards ‘uncontroverted’ expert evidence?

Kennedys was instructed on behalf of TUI (UK) Limited.

Background

The claimant, Mr Peter Griffiths, brought a claim against the tour operator, TUI, for personal injury on the basis that he had suffered gastric illness caused by food and/or drink provided as part of the package holiday contract.

At trial in the first instance, the claimant relied on expert medical evidence from a microbiologist on causation. It was the expert’s opinion that, on the balance of probabilities, the claimant contracted his illnesses through the consumption of contaminated food and/or drink provided at the hotel. The defendant did not adduce expert evidence, but made submissions as to the quality of the expert opinion evidence relied upon by the claimant.

The claim was dismissed. The judge at first instance found that Mr Griffiths had been ill as described, but that the expert evidence was deficient in a number of respects and therefore did not prove his case, it being “open to a defendant to sit back and do nothing save make submissions, and if the evidence is not sufficient to satisfy a court on the balance of probabilities, a claim will not succeed”.

The claimant appealed to the High Court on the basis that the trial judge had been wrong to dismiss the expert’s evidence in the absence of any evidence challenging or contradicting the conclusion. Mr Justice Martin Spencer allowed the appeal, finding that although there were serious deficiencies in the expert evidence, the evidence complied with the requirements of CPR Part 35, was “uncontroverted” and as such, the court was bound to accept it.

In September 2020, TUI applied for permission to appeal the decision and obtain a stay of execution. The Court of Appeal’s judgment was handed down on 7 October 2021.

Court of Appeal’s judgment

TUI’s central argument was that Martin Spencer J erred in law in holding that, where an expert’s report is “uncontroverted”, the court is “not entitled to evaluate the substance of the report and that all the court needs to do is to decide whether it fulfils the minimum standards prescribed by CPR PD 35.” Rather, TUI argued that a judge is bound to consider whether they accept the expert’s reasoning and conclusions adduced in proof of a claim regardless of whether the report is controverted. In simple terms, the judge had a function to assess the quality of the expert opinion evidence before it, and not just rubber stamp it.

The opposing argument on behalf of the claimant was that if “expert evidence is not contested by other evidence and there is no conflict for the court to resolve, the judicial function to weigh the evidence and resolve that conflict is not engaged and therefore, it is not permissible to look at the reasoning within the report, as long as it complies with CPR Part 35 and CPR PD 35 in particular.” In simple terms, CPR compliant expert evidence that is uncontroverted, cannot be assessed for quality and must be accepted.

The majority allowed the appeal, with Lady Justice Asplin giving the lead judgment. Asplin LJ did not consider that there was a bright line between controverted and uncontroverted evidence and as such, the trial judge had been correct to reject the expert evidence relied on by the claimant, due to the deficiencies within it. Further, the strict test applied by Martin Spencer J was incorrect, because, it is not the function of a trial judge to rubber stamp expert evidence “if it were otherwise the court would be bound by an uncontroverted expert’s report…even if the conclusion was only supported by nonsense”.

Asplin LJ did not consider it unfair that a defendant sought to challenge expert evidence in closing submissions; it was a high risk strategy, but the defendant was entitled to submit that an essential aspect of the case had not been proved to the requisite standard, and nor need it provide an opportunity for deficiencies in evidence to be resolved. It is for the party who relies on the expert evidence to make sure that all relevant matters are covered, and the report is sufficient to satisfy the burden of proof.

Lord Justice Nugee agreed with Asplin LJ, further explaining that “As a matter of basic principle it is the function of trial judges to evaluate all the evidence before them in reaching their conclusions on the factual issues. That includes deciding what weight should be given to the evidence.”

In dissenting, Lord Justice Bean noted that Martin Spencer J was incorrect to hold that a judge is bound to accept expert evidence if it is not controverted by other expert or factual evidence, but that “…a judge is generally bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence and the opposing party could have cross-examined the expert on the point but chose for tactical reasons not to do so.”

Comment

This is an important case in relation to all expert evidence in civil litigation, not just ‘holiday sickness’ claims.

As it stood, the decision of Martin Spencer J created issues for all expert evidence, having far reaching practical and cost consequences. For example, parties were increasingly seeking to adduce their own expert evidence (with applications for leave to rely on it) and experts were being called to court to give oral evidence (again with applications for leave), all increasing costs.

The majority decision has resolved these issues. A party does not necessarily need to seek to adduce its own expert evidence, or seek to cross examine the expert, for fear of being unable to challenge the expert evidence relied on by the other side. Where a report is deficient in its reasoning, making that submission, if accepted, should be enough as the report cannot be “rubber stamped”.

It is noteworthy that whilst this case was a matter allocated to the multi-track, there was no order for cross examination of the expert. However, in fast track cases, obtaining expert evidence and/or getting oral evidence can be problematic for the defending party.

The judgment has restored the status quo - a claimant has to prove a case on the balance of probabilities, and if the evidence obtained and relied on by the claimant does not satisfy that burden, the case should be dismissed.