Key Facts
- •Mr. Griffiths suffered a serious stomach upset during a package holiday in Turkey.
- •He sued TUI, the travel company.
- •Mr. and Mrs. Griffiths gave uncontested factual evidence.
- •An expert witness, Professor Pennington, gave uncontroverted evidence suggesting the hotel food caused the illness.
- •TUI did not cross-examine the expert and offered no evidence of its own.
- •The trial judge dismissed the claim, citing deficiencies in the expert's report.
- •The case went through multiple appeals.
Legal Principles
A court can reject uncontroverted expert evidence if it is a 'bare ipse dixit' (a mere assertion without reasoning).
Kennedy v Cordia (Services) LLP [2016] UKSC 6
Expert reports must provide reasoning for conclusions; 'what carries weight is the reasoning, not the conclusion'.
Kennedy v Cordia (Services) LLP [2016] UKSC 6
CPR PD 35 requires experts to state their awareness of Part 35, the practice direction, and the Guidance for the Instruction of Experts, which emphasizes the need for reasoning in reports.
CPR PD 35, para 3.2(9)
Generally, a party must challenge a witness's evidence in cross-examination if they intend to argue it should not be accepted; this applies to both factual and expert witnesses. Exceptions exist (e.g., incredible evidence, obvious mistakes).
Phipson on Evidence, para 12-12; Browne v Dunn (1893) 6 R 67; Deepak Fertilizers & Petrochemical Ltd v Davy McKee (UK) London Ltd [2002] EWCA Civ 1396; Markem Corpn v Zipher Ltd [2005] EWCA Civ 267; Chen v Ng [2017] UKPC 27; Edwards Lifesciences LLC v Boston Scientific Scimed Inc. [2018] EWCA Civ 673
The fairness of the trial is paramount; the rule regarding cross-examination is flexible and depends on the circumstances.
Various cases including Browne v Dunn, Chen v Ng, Edwards Lifesciences
Outcomes
The Supreme Court allowed Mr. Griffiths' appeal.
The trial was unfair because TUI did not cross-examine Professor Pennington, yet criticized his report in closing submissions. The Court found that Mr. Griffiths had established his case on the balance of probabilities based on the uncontroverted evidence.