Will your expert evidence be accepted by the court?
14th October, 2021
In a case recently decided a Claimant served expert evidence from a consultant microbiologist but the Defendant did not. Did the Claimant win on the basis of that expert evidence? The answer is No.
The case demonstrates perfectly how important it is in litigation to properly analyse the evidence a party wishes to rely on and whether it actually supports the case.
The case is Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442. The court needed to decide whether the Claimant’s gastric illness was caused by contaminated food and drink supplied by a hotel where the Claimant was staying. The all-inclusive holiday was provided by TUI. The Defendant won at first instance but the High Court allowed the Claimant’s appeal and set aside the order. The case went to the Court of Appeal.
The question that arose in this case was whether unchallenged expert reports could be evaluated and rejected by the court. In her judgment Lady Justice Asplin stated; ” There is no rule that an expert’s report which is uncontroverted… cannot be impugned in submissions and ultimately rejected by the judge.”
Lady Justice Asplin then went on to agree with the damning remarks made by the trial judge, “the court is not a rubber stamp. If it were otherwise, the court would be bound by an uncontroverted expert’s report…. even if the conclusion was only supported by nonsense.”
The judgment in this case is clear: a poor case with little or poor merits will not be saved by there being unchallenged expert evidence. The court will not just accept unchallenged expert evidence at face value, and will decide the case on all the evidence.
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Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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