Following a recent
In a gastric-illness breach of contract claim, Spencer J in Griffiths -v-
Since the ruling in Wood -v-
The significance of this case extends beyond the confines of gastric-illness and package travel cases. It sets an important precedent with regard to how courts will approach expert evidence in the future.
Background
The claimant, Mr
The claimant had relied on the expert report of a microbiologist and the answers his expert gave to questions put to him under CPR Part 35. It was the claimant's expert's view that the claimant had, on the balance of probabilities, contracted his illnesses through the consumption of contaminated food or fluid from the hotel.
Despite having permission, the defendant failed to obtain and serve in time an expert report from either a gastroenterologist or consultant microbiologist. After the claimant served its own microbiologist report, the defendant made an application for permission to rely on a gastroenterologist report and sought relief from sanction, both of which were refused by the court. The defendant raised CPR Part 35 questions but did not seek to cross-examine the claimant's expert at trial.
The trial judge rejected the claimant's expert report. The trial judge was of the opinion that the expert report had not gone far enough to explicitly rule out other potential sources of contamination as per the obiter comments of the
On Appeal
The claimant appealed on the basis that where an expert report is uncontroverted (that is to say, the factual basis of it had not been shaken and there was no contradictory expert opinion), then subject to exceptional circumstances, it should be accepted by the court. In answering the question in relation to uncontroverted expert reports, Spencer J held:
'I take the view that a court would always be entitled to reject a report, even where uncontroverted, which was, literally, a bare ipse dixit, for example if
In summary, Spencer J held that if a claimant's expert report was uncontroverted, was not merely a bare assertion made by the expert without relying on any authority or proof and meets the minimum standards set out in CPR Part 35, then the report must be accepted by the court. The Court of Appeal held that although the report was 'short, indeed one could describe it as minimalist', it was not merely a bare assertion made by the claimant's expert. Despite the shortfalls of the claimant's expert report, as the defendant had failed to adduce their own expert evidence and had not cross-examined the claimant's expert at trial, the court decided it must accept the claimant's expert report.
Accordingly, the appeal succeeded. As did the claim.
Implications of the Judgment
It is clear therefore that going forward in cases, a defendant must be proactive and obtain its own expert report to contradict claimants' expert evidence. This will no doubt increase the costs of litigating and defending these claims. While the CPR allows each party to obtain its own expert report in fast-track cases, there is a risk with expert evidence from both parties, and detailed witness evidence that these claims could exceed a one-day trial causing claims to be allocated to the multi-track. This means higher claimants' costs given multi-track claims are not limited to the fixed costs which apply for package travel claims which commence on or after
It will be interesting to see whether the precedent set by Griffiths will lead to more success for gastric illness claims. Claimants may have more of an appetite to pursue claims previously considered too risky. For defendants, courts may be more willing to grant them permission to obtain expert reports than before, but if this is at the cost of a claim being allocated to the multi-track and therefore higher costs being claimed by claimants, then defendants may be less likely to obtain such evidence and to continue to defend these claims. Hence, all the more reason to curtail each expert's opinion to the salient points of the case and have these agreed in order to keep the case within the one-day fast-track trial allocation. If defendants do not have their own evidence to challenge the claimant's expert evidence, it is difficult to see how defendants can win these cases. In the same vein, defendants who have missed a deadline for submitting expert evidence may have more leverage with courts that are more likely to recognise the need to allow defendants to contradict claimant evidence in the interests of justice.
In
Our travel and leisure team have a wealth of knowledge built up over the years in all matters affecting the travel industry. If you have any queries or particular issues of concern, please contact us for an initial free consultation on operational procedures, claims procedures or any individual case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
SW1Y 6EE
© Mondaq Ltd, 2020 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source