Griffiths v TUI [2021] EWCA Civ 1442 (CA)
Feb 06, 2022CASE SUMMARY
Factual circumstances
Peter Griffiths purchased an all-inclusive holiday to Turkey from the defendant TUI UK Limited ("TUI") in August 2014. Whilst on holiday, he suffered a gastrointestinal illness which he claimed was as a result of the consumption of food or drink at the hotel.
Mr Griffiths had not eaten exclusively at the hotel during his stay prior to falling ill, as is often the case in holiday sickness claims.
First Instance
Both parties had permission to obtain a report from a gastroenterologist to deal with the breach and a microbiologist to address causation. Mr Griffiths served the report of a gastroenterologist, and TUI did not serve any expert reports.
TUI put CPR Part 35 questions to the gastroenterologist but did not call the expert to be cross-examined at trial. Consequently, the opinion of the gastroenterologist stood uncontroverted.
Counsel in closing submissions for TUI criticised the gastroenterologist's report and conclusions. HHJ Truman accepted Mr Griffiths had been ill but dismissed his claim, persuaded that she could not be sure Mr Griffiths contracted his illness at the defendant's hotel.
HHJ Truman said in closing that (para 28):
It remains open for 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 claimant will not succeed.
Appeal to the High Court
Mr Griffiths appealed to the High Court. The appeal was heard by Spencer J.
Spencer J ruled that where expert evidence is uncontroverted, the court's role is limited to ensuring that two things have been complied with:
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The expert has reached their conclusion supported by some reasoning (see Kennedy v Cordia [2016] UKSC 6).
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The expert has complied with the minimum standards provided for by CPR PD35.
Spencer J accepted the gastroenterologist's report, and Mr Griffiths succeeded in his appeal.
Appeal to the Court of Appeal
TUI contested Spencer J's interpretation of how the court should manage uncontroverted expert evidence.
A majority decision of the Court of Appeal overturned the High Court's ruling and reinstated HHJ Truman's decision (para 65):
The judge cannot be prevented from considering the quality of such evidence in order to determine whether the burden of proof is satisifed just because it is uncontroverted...the court is not a rubber stamp.
Bean LJ, in a powerful dissenting judgment, felt this did not afford Mr Griffiths a fair trial referring to the tactic as "litigation by ambush".
What's next?
With such a strong dissenting judgment, we await to see if TUI will appeal the decision to the Supreme Court.
References
Peter Griffiths v TUI UK Limited [2020] EWHC 2268 (QB)
Peter Griffiths v TUI (UK) Limited [2021] EWCA Civ 1442
Citation: Jacklin, D. 2021. Griffiths v TUI [2021] EWCA Civ 1442 (CA). Water Incident Research Hub, 28 December.
