The importance of an expert - and a call to mediate?

Hunt ADR Arbitrator Andrew Davis, who has arbitrated dozens of Travel Arbitration cases over the last two and a half years, looks at the recent case of Griffiths v TUI UK Ltd (2020) EWHC 2268 (QB). Andrew's final sentence is key - if this ruling means an increase in expert activity in litigation, and therefore more cost, then surely there is a call here to push more of these cases through mediation?

The number of food poisoning and related gastric illness claims increased after the Court of Appeal decision in Wood v TUI UK Ltd (2018) 2 WLR 1051. Notwithstanding, in that case, Sir Brian Leveson commented that it was difficult to prove food and drink was not of satisfactory quality unless there is cogent evidence others were similarly affected and alternative explanations would have to be excluded. This led to defendants rigorously challenging expert evidence submitted for the Claimant, rather than putting forward their own evidence.

Guidance regarding the proper approach of a court in such cases towards expert evidence that is uncontroverted has now been provided by Spencer J in the appeal case of Griffiths v TUI UK Ltd (2020) EWHC 2268 (QB). In that case, the only expert evidence before the court was on behalf of the Claimant, albeit the report was described as “minimalist”, but the Defendant did not call any evidence to challenge it nor did the Defendant cross examine the expert.

Subject to any appeal that might be made, the decision makes clear that where the report in question is truly uncontroverted as in that case, the role of the court falls away and all it needs to be satisfied about is that the report fulfils minimum standards set by CPR Part 35.

The lesson is that in such cases, Defendants are more likely to need their own expert evidence to contest the Claimant’s expert and causation otherwise the court is likely to accept the only expert evidence available to it. At the very least it will need to challenge such evidence. This will lead to extra expert activity and increased costs for all parties in litigated cases.