2 November 2021

Uncontroverted Expert Evidence Is Not Incontrovertible

The Court of Appeal handed down judgment last month allowing the Defendant’s appeal against the decision of Martin Spencer J in the case of Griffiths v TUI UK Ltd. The High Court decision is discussed in the author's blog entitled “The Limitations of Challenging Uncontroverted Expert Evidence”, which can be read here. The decision of the Court of Appeal can be accessed here. 

Appellate History

The proceedings arise out of a claim brought by the Claimant for gastric illness he suffered whilst on a package holiday to Turkey supplied by the Defendant.

The Claimant’s microbiology evidence on causation was uncontroverted in the sense that the Defendant did not challenge or undermine it by calling or adducing any of its own evidence; nor did the Defendant undermine the factual basis of the Claimant’s evidence through cross-examination. The Defendant did however challenge the report during its closing submissions.

The claim was dismissed by HHJ Truman on the basis that the evidence of the Claimant’s microbiologist contained a number of serious deficiencies and that accordingly, the Claimant had failed to establish causation on the balance of probabilities.

The Claimant appealed.

Martin Spencer J allowed the appeal on the basis that where an expert report is uncontroverted, the court’s only role is to decide whether the report meets certain minimum standards that any expert report must satisfy; those being that the report must be one which cannot be characterised as bare ipse dixit and the report must comply with CPR PD 35. Martin Spencer J considered that the Claimant's expert evidence met those minimum standards.

The Defendant appealed.

The Majority Decision in The Court of Appeal

The Court of Appeal by majority disagreed with the decision of Martin Spencer J and allowed the Defendant's appeal.

Asplin LJ, with whom Nugee LJ agreed, observed that Martin Spencer J relied inter alia on the case of Kennedy v Cordia LLP [2016] 1 WLR 597 which cited Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, where the Court observed at p. 371 that:

"Except possibly where it is not controverted, an expert's bald statement of his opinion is not of any real assistance".

Martin Spencer J placed reliance on this possible exception.

Asplin LJ considered however that there was no rule that an expert’s report which is uncontroverted and which complies with CPR PD 35 cannot be impugned by submissions and ultimately rejected by the judge.

Asplin LJ did not consider their Lordships in Kennedy in quoting Coopers to be endorsing the proposition made as an aside in relation to uncontroverted expert evidence. Asplin LJ also observed that the aside was expressed only in terms of a possibility and considered that their Lordships’ intention was to make it clear that unless the matter is one of personal observation, an expert must explain the basis for his or her conclusion.

It was submitted on behalf of the Claimant that it was unfair for the Defendant only to challenge his expert evidence in closing submissions and a number of cases were cited in support of that proposition. Asplin LJ observed however that the cases were concerned with circumstances in which a significant aspect of the expert evidence was challenged on the basis that it was untrue. In the present case, the credibility of the Claimant’s expert was not in issue. Rather the report was regarded as insufficient to satisfy the burden of proof in relation to causation, due to its deficiencies.

As Asplin LJ observed at [65]:

“I can see nothing which is inherently unfair in seeking to challenge expert evidence in closing submissions. 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. As Judge Truman stated, the court is not a rubber stamp. If it were otherwise, the court would be bound by an uncontroverted expert’s report which satisfied CPR PD 35, even if the conclusion was only supported by nonsense.”

Dissenting Remarks by Bean LJ

Bean LJ disagreed with his colleagues.

Bean LJ agreed that Martin Spencer J was wrong to hold that a judge is effectively bound to accept the evidence of an expert not controverted by other expert or factual evidence and that "once a report is truly uncontroverted, the role of the court falls away". His Lordship considered however that a judge is generally bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence and the opposing party could have cross-examined the expert on the point but chose not to for tactical reasons.

Bean LJ “profoundly” disagreed with the view of his colleagues that a party may reserve its criticisms of a report until closing submissions if it chooses to do so. His Lordship considered that the Claimant did not have a fair trial of his claim and that the court should not allow litigation by ambush. On that basis Bean LJ would have dismissed the Defendant’s appeal.

Comment

This decision will come as a welcome relief to Defendants who will not be required to obtain their own expert evidence in cases where they wish to challenge the Claimant's expert evidence on the basis that it is insufficient to discharge the burden of proof on the Claimant. Furthermore, there is nothing to prevent a party waiting until they close their case before impugning the other party’s expert evidence on that basis. This decision sounds a warning to parties to ensure that their own expert evidence is sufficiently reasoned so that in circumstances where it is uncontroverted, it cannot be challenged on the basis that its conclusions are inadequately substantiated.

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Cassandra Williams

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