In the summer of 2021, the Civil Justice Council Report into possible compulsory ADR was published, and started a debate which is presently in its foothills stage. Whatever the ultimate outcome, the costs and time taken to litigate can be foreshortened by ADR, and the recent Court of Appeal decision in Griffiths v TUI (2021) EWCA Civ 1442 (CA) is illustrative of this.
In a previous article, I reported that Martin Spencer J had allowed an appeal from the trial judge (Judge Truman) and held that in a food poisoning case, the Claimant’s expert report by Professor Pennington was uncontroverted as TUI did not call any evidence to challenge or undermine the factual basis of it despite being “minimalist” and therefore the Claimant succeeded on the claim. TUI appealed the decision and succeeded (Lady Justice Asplin and Lord Justice Nugee allowed the appeal and Lord Justice Bean dissented).
Whilst litigation tactics take on some importance, TUI had intended to rely upon their own expert evidence but failed to serve it in time, so this was not a case of only choosing to contest the expert evidence submitted for the Claimant rather than putting forward their own. However, the basis upon which the appeal succeeded was that although the Claimant’s expert report was only challenged at the closing submissions stage, Lady Justice Asplin could see “…nothing which is inherently unfair in seeking to challenge expert evidence in closing submissions.” Lord Justice Bean profoundly disagreed and considered the Claimant did not have a fair trial and the courts should not allow litigation by ambush.
It remains the case that in food poisoning and related gastric illness cases, Claimants need to back up their claim by expert evidence, and it takes a brave Defendant to neither obtain its own expert report nor cross-examine the Claimant’s expert.
In this case, whilst it was not suggested that Professor Pennington’s report was necessarily wrong, it was just that it was insufficient to enable Mr Griffiths to prove on the balance of probabilities that his illness had been caused by contaminated food or drink at the hotel. This is a fine line and the outcome may be unique to the facts of this case and the wording or reasoning of an experienced expert.
As Lady Justice Asplin held:
"It all depends on the circumstances. There is no rigid test.”
Nevertheless, litigation is costly and this case has already reached the Court of Appeal and may go to the Supreme Court. Whilst the Court of Appeal decision could lead to many food poisoning cases fighting to trial rather than settle, as Defendants may feel they can sit back and challenge a Claimant’s expert report in submissions, parties might prefer to have their cases resolved through ADR. Whatever the Civil Justice Council Report leads to, even allowing for the costs of necessary experts in cases such as this, the use of ADR in its various different forms provides a good chance of an earlier resolution at less cost.
Andrew Davis is an arbitrator on Travel Arbitration, resolving disputes between holidaymakers and travel companies. Travel Arbitration can be used for some illness and injury claims, where the claim is limited to £1,500 and does not form more than 50% of the totality of the claim. Within the Travel Arbitration suite we also offer conciliation specifically for illness and injury claims and more than 90% of these cases have settled at conciliation. For more information see Travel Arbitration & Conciliation Services.