The Court of Appeal (Civil Division) has considered whether (and if so, in what circumstances) a court can reject the conclusions of an “uncontroverted” expert report, i.e. a report whose author has not been required to attend for cross-examination and which is not contradicted by an opposing expert or other factual evidence.
The question dealt with is an important one in terms of evidence and procedure and the case ought to be considered by all parties and courts when expert reports are tendered. Griffiths v. Tui probably does not alter the position that, where criticisms of an expert report are to be relied on in closing submissions, good practice is to ensure that any criticisms are firmly put to the expert in the course of trial. The decision of the majority was, however, that there is no strict rule requiring the judge to accept the conclusions of an expert report, even if it complied with CPR requirements and had been entirely uncontroverted. This is a significant conclusion.
The dissenting judgment of Lord Justice Bean, drawing on what he considered to be an uncontroversial proposition, held it to be procedurally unfair to criticise an expert’s opinion on a material matter where the expert had not been cross-examined in the course of the trial. He held that an expert was, in that respect, in no different position from any other witness; if the witness’s evidence was to be criticised, whether on the grounds of credibility or otherwise, then such criticisms must be put squarely to the witness.
Facts
The case related to the purchase by Peter Griffiths (the Claimant/Respondent) of an all-inclusive two-week holiday in Turkey from Tui (UK) Limited (the Defendant/Appellant). The Claimant suffered a serious gastric illness whilst on holiday, the symptoms of which persisted after his return home. He made a claim in contract and pursuant to relevant regulations.
The Defendant company did not serve expert reports although it had every opportunity to do so. It did not rely on expert evidence in the trial at all. The Claimant had served an expert report by a Professor Pennington. This was the only expert evidence that addressed the issue of causation.
The Defendant company criticised Professor Pennington’s report in closing submissions, despite not requiring him to attend for questioning him on any aspect of his report and putting any of its criticisms to him. The County Court judge ultimately adopted a number of the criticisms made in the Defendant’s closing and rejected the relevant conclusions of the expert report, finding it to be “minimalist”, an observation which is not inaccurate. The judge held, however, that the report substantially complied with the requirements for expert reports in CPR Part 35 and PD35.
The trial judge said: “it is trite law that the burden of proof is on the Claimant. It is open to 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”.
She dismissed the claim and ordered the Claimant to pay the Defendant’s costs. She did so on the basis that she was not satisfied that the medical evidence showed that on the balance of probabilities the illness was caused by contaminated food or drink supplied by the hotel.
Appeal to High Court
The Claimant appealed to the High Court. The appeal turned on the proper approach to treating uncontroverted expert evidence and whether the County Court judge had erred in rejecting Professor Pennington’s expert evidence in the absence of any cross-examination and any evidence challenging or contradicting the conclusion.
Ultimately the High Court judge found that the County Court Judge had erred and was not entitled to reject the expert evidence: “…what the court is not entitled to do, where an expert report is uncontroverted, is 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 in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual evidence. Once a report is truly uncontroverted, that role of the court falls away.”
Appeal to the Court of Appeal
The case went to the Court of Appeal where the lead judgment was given by Asplin LJ, with Nugee LJ agreeing. They found that there was nothing inherently unfair in seeking to challenge expert evidence in closing submissions:
“[65]…It may be a high risk strategy to choose neither to adduce contrary evidence nor to seek to cross-examine the expert but there is nothing impermissible about it… As long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so. The defendant is entitled to submit that the case or an essential aspect of it has not been proved to the requisite standard. He cannot be prevented from doing so because some of the evidence is contained in an uncontroverted expert’s report. Furthermore, he cannot be required to file his own contrary expert’s evidence in order to enable the court to weigh the evidence. The judge cannot be prevented from considering the quality of such evidence in order to determine whether the burden of proof is satisfied just because it is uncontroverted.”
They held that the closing submissions were to the effect that the expert report did not satisfy the requisite standard of proof in regard to causation and it was essential that the County Court judge engaged with such submissions and determined whether causation had been proved by the Claimant.
Nugee LJ added at paragraph [81]: “…I see nothing in the authorities that suggests that that obligation to assess the evidence falls away if it is “uncontroverted”; uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole.”
The appeal was allowed. There was no rule that a CPR-compliant expert report that is uncontroverted cannot be impugned in closing submissions. Whilst accepting that in some cases it would not be permissible for a judge to reject an expert’s uncontroverted evidence, it would depend on the circumstances. In this case, the judge was entitled to accept that Professor Pennington’s report was, on its face, deficient in its reasoning and that it was insufficient for the Claimant to discharge the burden of proving causation. Based on their review of the authorities, Asplin and Nugee LJJ took the view that the crucial issue was whether there were cogent reasons for the judge to reject the uncontroverted expert evidence; in this case there were such reasons and the judge had expressed them.
Dissenting judgment
Lord Justice Bean gave a strong dissenting judgment and “profoundly” disagreed with the majority. He found that it was in fact unfair for the Defendant company to have made closing submissions which in effect invited the court to reject Professor Pennington’s report, without having first cross-examined the expert on those criticisms. Quoting Phipson on Evidence he said:
“In general, a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases as it does in criminal.”
This principle, he said, was of wider application and applied to both experts and lay persons.
He was so adamant that this was the law, he said at para [89]: “Throughout my 28 years as a practising barrister this proposition would have been regarded as so obvious as not to require the citation of authority. Certainly we were not shown any authority to the contrary.”
He said that, although the fact-finding judge cannot delegate the decision-making role to the expert, a judge is generally bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence, particularly in circumstances where, as here, the opposing party could have cross-examined the expert but chose for tactical reasons not to do so.
He distinguished criminal cases, noting that a judge in a criminal trial cannot direct a jury to convict and that if the only expert evidence is firmly in favour of the prosecution, it is conventional to tell the jury that it is a trial by jury, not by expert. He also observed, however, that it would be inconceivable that a criminal trial judge would allow the prosecution to make closing submissions criticising a defence expert unless the relevant points had been fairly and squarely put to the expert.
In a particularly powerful paragraph, [98], he suggested, “Mr. Griffiths must be wondering what he did wrong”. He took the view, at [99] that reserving criticisms of an expert report until closing amounted to “litigation by ambush” and that the Claimant did not have a fair trial.
The difference of approach between Bean LJ and the majority in this case is stark. It will be interesting to see how first instance courts now approach this issue, because the circumstances cannot be uncommon. The case may have broader impact on the permissible rejection of uncontroverted evidence, going beyond the evidence of experts, in many areas of practice.
Even the majority, however, accepted that not requiring an opposing expert to be cross-examined and not serving contrary evidence is a “high risk strategy”. It must still be good practice for parties and their advocates to put their case to all witnesses.
Mai Holdom & Jack Walsh
