Lessons for property lawyers from ‘holiday illness’ claim : Is the Court obliged to accept ‘unopposed’ expert evidence?

The High Court appeal in Griffiths v TUI [2020] EWHC 2268 handed down in August 2020 has been much remarked on by personal injury lawyers, but the decision is also of interest for cases in the business and property courts, as it places a significant restriction on the role of the Court in cases of ‘unopposed’ expert evidence. 

The case concerned a claimant, Mr Griffiths, who suffered from food poisoning while on holiday. The claimant relied on an expert report to establish causation. The defendant travel company (TUI) put CPR 35 questions to the Claimant’s expert, but did not call its own expert or ask for the Claimant’s expert to be cross-examined at trial. An evidential position which is apparently not uncommon for these types of personal injury claims. 

Despite not calling any positive evidence on causation the Defendant succeeded in persuading the first instance judge (HHJ Truman) that the Claimant’s expert report should be rejected on the basis it was incomplete in that it did not expressly discount other possible causes, and lacked reasoning on certain issues. 

On appeal before Spencer J, the Claimant successfully argued that HHJ Truman was wrong to embark on an enquiry into the quality of the report. The Court’s role was limited (in cases of uncontroverted evidence) to ensuring the report was ‘substantially’ CPR 35 compliant and more than a bare assertion. 

In reaching this view Spencer J relied on: 

(i) The judgment of Clarke LJ (as he then was) in Coopers Payen Limited v Southampton Container Terminal Ltd [2004] Lloyds Rep 331 at 338. Clarke LJ, with whom the other judges agreed, contrasted the position where an expert, for example a single joint expert, is the only witness on a particular topic with the position where the expert’s opinion is only part of the evidence:

a. If the expert is the only witness on a particular topic, for instance where the facts are agreed, in such circumstances “it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert’s opinion was wrong.”
b. If (as is more often) the expert’s opinion is only part of the evidence in the case, e.g. the assumptions on which the expert gave his or her opinion may prove to be incorrect, in that event the expert’s opinion may no longer be relevant.

(ii) In a concurring judgment Lightman J (pertinently for property lawyers), gave an example of a valuation case being one which may fall within (a) (1) above, saying: “where a single expert gives evidence on an issue of fact on which no direct evidence is called, for example as to valuation, then subject to the need to evaluate his evidence in the light of his answers in cross-examination his evidence is likely to prove compelling. Only in exceptional circumstances may the judge depart from it and then for a good reason which he must fully explain.”

(iii) The Supreme Court in Kennedy v Cordia (Services) LLP [2016] 1 WLR 597 at [48] per Lords Reed and Hodge – a mere assertion or bare ipse dixit (“he said it himself”: an assertion without proof) is worthless – quoting with approval a South African Supreme Court judgment (Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft (1976) (3) SA352, 371) which stated: “Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.” 

Spencer J concluded: 

1. 1. 1. A Court would always be entitled to reject a report, even where uncontroverted, which was, literally, a bare assertion without proof. For example, a one sentence report stating a bare conclusion. 
      2. A Court is not entitled, where an expert report is uncontroverted, to subject the report to the same kind of analysis and critique as if it was evaluating a controverted or contested report where it had to decide the weight of the report (for example against competing factual evidence). Once a report is truly uncontroverted, that role of the Court falls away. 
      3. In this situation, all the Court needs to do is decide whether the report fulfils certain minimum standards which any expert report must satisfy if it is to be accepted at all. 
      4. Those ‘minimum standards’ are substantial compliance with the requirements of CPR Practice Direction 35. 

Whilst the evidential position in Griffiths would be unlikely to occur in cases in the business and property courts, it does raise the question of to what extent this principle could apply in cases with a single joint expert (as in Coopers Payen) or where separate experts agree on a particular issue. Is there now any scope left for the Court to disagree with unopposed expert evidence, provided the report, or reports, meet the required minimum standards. 

Of course, the Court can disagree with unopposed expert evidence where the evidence is refuted by a credible witness of fact. For example, in Kingley Developments Ltd v Brudenell [2016] EWCA Civ 980 the Judge rejected the evidence of a single joint handwriting expert that the signatures on a document were forged, as this conflicted with the evidence of a witness that witnessed the signatures at the time that the document was signed. This is not disturbed by the principle in Griffiths. 

However, other decisions which would suggest a Judge can analyse unopposed expert evidence (e.g. a single joint expert’s report) to assess whether he or she has reached the correct conclusion (Woolley v Essex County Council [2006] EWCA Civ 753) would now seem to be at odds with the decision in Griffiths. 

The defendant in Griffiths has sought permission for a second appeal to the Court of Appeal, and the decision on permission is awaited. A decision from the Court of Appeal should bring some welcome clarity. 

Whilst the decision in Griffiths stands, the key practical considerations for practitioners are: 

1. 1. Do you have any positive evidence to challenge the other side’s expert evidence? – whether expert (a separate expert) or factual? Be aware that if the other side has a weak report, the judge may be obliged to accept it if it is unopposed. 
   2. Remember to seek permission to cross-examine an expert if you are seeking to challenge any part of their report, so it is not ‘uncontroverted’ or ‘unopposed’ as in Griffiths. 
   3. If you are facing unhelpful evidence from a single joint expert consider whether you have grounds to seek to appoint your own expert, rather than asking the judge to reject their (possibly unopposed) evidence.