TUI waited until closing submissions to attack the reasoning of the only expert who addressed why Mr Griffiths became ill on holiday. The expert had no chance to answer. The Supreme Court explained when fairness requires a party to put its challenge to a witness, and why that mattered even though no one questioned the expert’s honesty.
Mr Griffiths developed gastroenteritis during an all-inclusive family holiday in Turkey in August 2014. He ate most of his meals at the hotel and needed hospital treatment before returning home. He and his wife gave evidence about hygiene at the buffets. Where he had eaten and when he became ill mattered because he had to prove what caused the illness.
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The proceedings and the uncontroverted report
Mr Griffiths sued in the County Court under the Package Travel, Package Holidays and Package Tours Regulations 1992 and sections 4 and 13 of the Supply of Goods and Services Act 1982. TUI denied that hotel food or drink had caused the illness and put him to proof. Permission was given for expert evidence from a gastroenterologist and a microbiologist. TUI served no expert report and called no factual witnesses. The only expert evidence on causation was therefore the report of Professor Hugh Pennington, together with his answers to TUI’s written questions under CPR Part 35.6. TUI did not require him to attend for cross-examination.
Professor Pennington, a microbiologist, attributed the illness to contaminated food or drink at the hotel on the balance of probabilities. His report and written answers identified giardia as the likely pathogen and considered the onset of symptoms and meals eaten elsewhere. He could not identify a particular dish. TUI served no competing medical opinion.
The decisions of the courts below
HHJ Truman accepted the evidence of Mr and Mrs Griffiths but dismissed the claim. She held that the report did not explain why the airport meal, the town meal, a possible second infection, or non-food methods of transmission had been discounted, and that it lacked a clear train of logic. She considered that reports after Wood v TUI Travel plc needed to deal with the matters identified by the Court of Appeal in that case, and that this report did not enable her to find causation proved.
The High Court allowed the claimant’s appeal, treating the uncontroverted report as sufficient. A majority in the Court of Appeal restored the trial result. It considered that TUI could criticise the report’s reasoning in submissions without cross-examining an expert whose honesty it accepted. Bean LJ dissented on the ground that the claimant had been denied a fair opportunity to answer.
The fairness rule and its limits
Lord Hodge, with whom Lord Lloyd-Jones, Lord Briggs, Lord Burrows and Lord Stephens agreed, treated the appeal as turning on the fairness of the trial. In civil proceedings the claimant bears the burden of proof. An expert assists the judge on matters outside judicial expertise but must not usurp the judicial function; the quality of the expert’s reasoning is therefore central, and a bare assertion is worthless. English procedure is nevertheless adversarial. The parties frame the issues, and the judge must ensure that the trial is fair.
A long-established rule, stated in Phipson on Evidence and developed in cases including Browne v Dunn, requires a party who wishes to submit that an opposing witness’s evidence on a material point should not be accepted to challenge that evidence in cross-examination. The rule is not confined to allegations of dishonesty or bad faith. It gives the witness a chance to explain, protects the party who called the witness, and enables the judge to assess the evidence properly. It applies to expert evidence as well as evidence of fact. Its rationale is the overall fairness of the proceedings, so it is not rigid. It may not apply where the point is collateral, the evidence is manifestly incredible, the opinion is a bare assertion, the report contains an obvious mistake or inconsistency, the opinion rests on facts that are not established, the expert has already had a sufficient opportunity to answer focused criticism, or there is a serious breach of the Practice Direction—in which case directions should ordinarily be sought first. None of those situations arose here.
Application to this trial
TUI put Mr Griffiths to proof, chose not to rely on expert evidence of its own, and did not require Professor Pennington to attend. Its written questions did not clearly identify the criticisms later made, so they did not give him a sufficient opportunity to answer them. The challenge was intimated only in a skeleton argument served on the afternoon before trial, too late for the claimant to call the expert. The report was terse and left relevant questions unanswered, but it was not a bare assertion. From the report and the answers it was possible to understand a rational, if high-level, assessment: giardia was the likely pathogen, its incubation period was consistent with infection at the hotel, and the frequency and circumstances of eating there outweighed the two meals eaten elsewhere and other possible sources. There was no basis for concluding that Professor Pennington could not have explained that reasoning more fully if cross-examined.
The Supreme Court therefore assessed the evidence itself. Combining the accepted evidence of where and how often the family ate, the absence of any evidence of poor hygiene elsewhere, and Professor Pennington’s uncontroverted opinion, it held that Mr Griffiths had established on the balance of probabilities that contaminated food or fluid from the hotel caused his illness.
Other observations
The outcome did not make illness during a holiday proof that the hotel caused it. The claimant still bore the burden of establishing causation. Nor did the Court require a lengthy opposing report in every modest claim. Focused written questions that fairly disclose the criticism, or short cross-examination on the disputed point, may give an expert the opportunity needed.
Verdict: The Supreme Court allowed the appeal. It held that the trial had been unfair and that Mr Griffiths had established on the balance of probabilities that his illness was caused by contaminated food or fluid from the hotel. The parties were invited to make written submissions on the appropriate form of order within 14 days.
