Expert evidence is used to assist the courts in resolving a dispute when a case involves specialist or technical matters. But what happens if one party elects to bring expert evidence, but the other party does not? Further, what is the position if the side without expert evidence does not seek to even challenge the other side’s expert?

This question was recently posed in Griffiths -v- TUI UK Limited [2021]. Richard Woodward, Associate Solicitor in our Dispute Resolution team, outlines the case and the highlights the importance of providing sufficient evidence.

The law courts are placed with the task of deciding, in court proceedings, who is wrong and who is right. This is a very simplistic way of looking at things but essentially, after months or even years of battling between claimants and defendants, if a matter gets in front of a judge at a final trial, the judge’s job is to choose a winner based on the evidence presented to the court.

The requirement for expert evidence

For some cases, the decision to be made is a purely legal one based on established facts, asking questions such as ‘when was a contract formed?’, ‘what was agreed?’, ‘has a debt been paid?’, and so on. But a significant number of cases require a view from a person in the industry that the dispute concerns as to what has happened and why. This person is generally referred to as an expert and they are tasked with investigating the issues and presenting their opinion to the court. After all, a judge cannot be expected to know how an engine operates or what the value of a company actually is. So, the judge will rely upon the expert’s view.

When expert evidence is required, the court will decide whether a single joint expert can be appointed (someone who works for both parties on an agreed instruction) or whether the parties can have their own experts. If it is the latter, the court then has to decide which evidence they prefer as, generally, the experts may disagree with each other. But what happens if one party elects to bring expert evidence, but the other party does not? Further, what is the position if the side without expert evidence does not seek to even challenge the other side’s expert? This question was recently posed in Griffiths -v- TUI UK Limited [2021] EWCA Civ 1442.

The case

The Griffiths case concerned a husband and wife who booked a holiday to Turkey through the defendant company. Whilst there, the claimant fell ill with acute gastroenteritis. He had eaten all but one of his meals in the hotel in which the couple stayed. The other meal was enjoyed at an eatery in the nearby town.

The claimant contended that the hotel had given him food poisoning and he instructed Professor Pennington, a microbiologist, to provide an expert opinion. Professor Pennington stated that, on the balance of probabilities, it was the food or drink from the hotel that had made the claimant ill. Professor Pennington was not called to the trial and was not cross-examined.

The defendant did have permission to instruct an expert but failed to do so and an application for relief from sanction failed. Therefore, it produced no counter expert evidence, and it did not cross-examine Professor Pennington.

The court at first instance felt that Professor Pennington’s evidence did not go far enough to establish a direct link between the claimant’s illness and the food and drink served at the hotel. On that basis, the court rejected the report and found that the claimant had not proven his case. The claimant appealed and the High Court refused the earlier decision, arguing that the lower court was not entitled to reject the report as it was ‘uncontroverted’; in other words, the truth or validity of the report had not been disputed by the defendant. Consequently, the defendant appealed to the Court of Appeal.

The appeal was allowed, and the Court of Appeal confirmed the court of first instance’s decision. The appeal court stated that it wasn’t that the original judge had considered Professor Pennington’s report to be wrong; instead, it felt that it had not gone far enough to establish a causal link between the hotel’s food and drink and the claimant’s illness. As a result, the claimant had failed to get over the standard required to succeed with his case.

There is a chance that this decision may be appealed to the Supreme Court, especially as Lord Justice Bean disagreed with his fellow appeal judges. However, as it stands, the courts can reject an expert’s uncontroverted report if it determines that it doesn’t satisfy the burden required to establish what it is setting out to establish.

Of course, a defendant is not helping itself by failing to obtain its own evidence and failing to cross-examine the claimant’s expert and there will be judges that do feel that the evidential burden has been reached simply because expert evidence has been adduced by one side and not the other. However, the Griffiths case shows that just because you have an expert report, and the other side has not challenged it, it does not mean you win by default, as some judges will determine that the expert has not ‘proven’ their opinion.

If you need assistance with settling a dispute, the expert Bray & Bray Dispute Resolution team is here to help. Contact us here.