Mr Griffiths’ case has traversed the Courts of England and Wales over a period of nearly four years. It started in the County Court at Birmingham, an appeal was heard by Martin Spencer J in the High Court, which was appealed to the Court of Appeal and now the UK Supreme Court will hear the case on 21st June 2023.
Holiday sickness practitioners will most certainly be familiar with the case. I had a County Court appeal with a reserved Judgment when Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) was handed down. It most certainly had a role in my appeal succeeding (I should point out that I had not obtained practice rights at this time and I merely drafted the appeal).
From that point, up to the overturning of that Judgment by the Court of Appeal, Claimants had a significant advantage over Defendant Tour Operators. The decision of Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442 was considered by many to be rectifying an absurdity that unless an expert report was controverted (factually or by other expert evidence) the Court had to accept an expert’s conclusions.
Many say it was Bean LJ’s dissenting comment that gave Mr Griffiths the force needed to obtain permission to appeal from the Supreme Court:-
[2021] EWCA Civ 1442 at para 99
The Supreme Court will be considering “whether, and (if so), in what circumstances, can the court evaluate and reject what is described as an “uncontroverted” expert’s report”.
Uncontroverted (as per Martin Spencer J’s decision) meant that a report was not challenged by way of the other party obtaining its own report or calling that expert to trial to be cross examined. Although I had many Defendants attempt to argue that part 35 questions equated to controverting an expert report, it was clear from part 35 that questions merely sought clarification (further Martin Spencer J described Part 35 responses as uncontroverted and therefore part of the uncontroverted expert evidence).
For those who do not practice in holiday sickness litigation, the expert evidence is almost certainly one of the key pieces of evidence to prove that the Defendant is in breach of the terms incorporated into the holiday contract pursuant to s9 Consumer Rights Act 2015 (that goods are of satisfactory quality). This is irrespective of whether you know the pathogen that caused the illness (because it has been determined by way of stool sample assessment) or do not.
This post is not about holiday sickness. It is about how Griffiths v TUI has an effect on all areas of litigation.
I was instructed to attend a Stage 3 hearing in an RTA case where there was a report from a neurologist. The report was very brief (especially for the high fee which was in its thousands) and really did not explain how the symptoms the Claimant had suffered post accident were attributable to the accident. The report did not add any further that the previous GP report adduced (and that expert gave no conclusion, deferring to a neurologist).
Stage 3 hearings are known for being a streamlined process and therefore the Court does evaluate evidence with a ‘rough and ready’ approach. It is not expected to take the same approach as it would in a Part 7 fast track trial.
The difficulty this Claimant had was that the expert failed to properly explain the basis for their conclusion. The Judge immediately addressed me on the report. It was his view that the report did nothing to assist in attributing the symptoms to the accident. He invited me to explain how he was wrong. He then offered to rise it allow me to take instructions from my Solicitors. Those who instructed me were of the view that a Part 8 Stage 3 hearing could not treat the expert evidence in the same way as Part 7 trial. They instructed me to argue that the Judge needed to accept t he evidence as it was because the expert’s conclusion was that the symptoms were linked.
Those instructing me did advise me that they were aware of the Court of Appeal’s decision on Griffiths v TUI but wanted me to argue that it was never intended to apply to the MOJ part 8 procedure. The Judge did not accept this proposition.
I would regularly rely on the High Court decision at Stage 3 hearing before it was overturned. Understandably I was successful because:-
- The Defendant had no ability to controvert the expert’s opinion as a Defendant could not obtain its own report or cross examine the Claimant’s expert, and
- Unless there were facts within the court proceedings pack that contradicted the evidence relied on by the expert to make their conclusion, the Defendant could not controvert the expert’s evidence of with facts as the Claimant would not be cross examined by facts.
As long as the report wasn’t bare assertions with no explanation as to how it came to that conclusion (ipse dixit), the conclusion had to be accepted. It is currently the case that a Judge may reject an expert’s opinion or report providing they have given reason that justified that.
In the Stage 3 case above, I was faced with an expert that had not given any proper explanation as to why the symptoms were linked to the accident. The Judge was entitled to reject the evidence of the Neurologist and he did.
Understandably those instructing were very disappointed (the fee earner in question had inherited the case from a colleague who had left the firm) but it could have been remedied before the evidence uploaded on to the MOJ portal.
A Judge’s ability to reject an expert’s opinion is not a novel outcome. For example, in Armstrong v First York [2005] EWCA Civ 277, the trial Judge heard evidence from an expert engineer about whether or not a collision could have caused the occupants to be displaced (which if not, would mean that the collision did not cause the injuries the occupants claimed they suffered). The trial Judge did not find any criticism of the expert evidence but also accepted the occupants’ evidence that they were displaced whilst inside the vehicle.
The trial judge decided to accept the occupants’ evidence and reject the expert’s evidence. The Court of Appeal affirmed the Trial Judge’s decision because he justified it. It is an entirely different situation compared with Mr Griffith’s case, but the principle is the same – a court is not obligated to accept the evidence of the expert.
So why is Griffiths v TUI relevant to non-holiday sickness litigation? Any case which requires expert evidence is affected by the upcoming Supreme Court appeal. In my view, the issue is less of a problem for multi-track cases or cases where permission is given for each party to obtain its own expert.
The Supreme Court could come to a decision that means the other party must either obtain its own expert evidence or call your expert to trial to be cross examined. Costs will increase and so will the length of trials. The law may remain the same and expert reports will be subject to scrutiny, with the court being able to reject providing it can give adequate reasons. There may be some midway ground.
My opinion will be that the Supreme Court will come to the decision that a Court is entitled to reject expert evidence (as it always had prior to the High Court decision of Griffiths v TUI) but that the opposing party must put the instructing party on notice (following Part 35 questions for clarification) why they will object to the report’s conclusion to avoid ‘trial by ambush’. Whether that will only allow the instructing party time to consider whether continue to trial, rather than have the opportunity to remedy (which would be of course, somewhat unfair if the instructing party can be told what is wrong with their expert evidence to then simply amend it) is a further potential issue.
This case will have an impact on all types of litigation, not just holiday sickness.
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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.