The game-changing case you need to know about

20 December 2023

Once every few years, a game-changing judgment is handed down. The Supreme Court has just obliged. It delivered an important, unanimous judgment about expert evidence in Tui v Griffiths [2023] UKSC 48. However, what the court said has equal relevance to the factual evidence.

Why is that of any relevance to the costs fraternity? The answer is because it will change the way that all disputed evidence is to be tested at trial. This will in turn impact upon the quantum of reasonably necessary evidence to be adduced.

The Court of Appeal below was bitterly divided in Griffiths v Tui [2021] EWCA Civ 1442. Poor Mr Griffiths was stricken down by a vile stomach bug whilst on a holiday organised by Tui. He and his wife gave evidence and were found to be utterly honest. They relied upon the succinct report of an expert who put blame at the door of the defendant.

Tui neither called its own expert nor required Professor Pennington, the sole expert, to attend at trial. It was only on the afternoon before trial that the defendant, in a skeleton argument, gave notice that it was challenging the report which it asserted was not of requisite detail and quality.

At the end of the hearing, the circuit judge rejected the expert evidence, saying that the court was not obliged to blindly accept a report. She believed that the report was unconvincing on causation and so dismissed the action.

On appeal to the High Court, the ever-reliable Mr Justice Martin Spencer found for Mr Griffiths. There was clear evidence which had not been countered by the defendant.

The Court of Appeal reinstated the first instance decision by majority. Lord Justice Bean could not hide his disgust in a dissenting judgment, the like of which I cannot recall, and went so far as to say that the blameless claimant had been denied a fair hearing!

At the Supreme Court hearing, it was evident that the judges were troubled. It did not come as a surprise that the appeal was allowed. The crux of the decision was that the defendant did not adduce expert evidence to contradict that of the claimant nor, critically, did it cross-examine the expert.

Our legal system is adversarial. Above all else, it demands cross-examination so as to give the witness an opportunity to explain, clarify and defend their evidence. This did not occur here. Cross-examination would have given Professor Pennington the chance to justify the views he had expressed. The upshot was that the claimant had been denied a fair trial.

The Supreme Court gave examples of where expert evidence could be dismissed without cross-examination as where it was obviously preposterous and incredible.

What applies to expert evidence must equally apply to disputed core evidence of fact. Where, for example, a defendant denies that an accident occurred at all or asserts that the alleged serious injuries were in truth negligible, full-blown cross-examination is a necessity.

All this means that trial time estimates and consequential costs will be increased.

This judgment goes to the heart of the law of civil evidence. It is truly a game changer.

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20 Dec 2023

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