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Courts cannot critique “uncontroverted” expert reports


Spencer: Judge was wrong to reject report

It is not the role of the courts to subject “uncontroverted” expert reports to “the same kind of analysis and critique as if it was evaluating a controverted or contested report”, the High Court has ruled.

Overturning the trial judge’s rejection of an expert report in a holiday sickness case, Mr Justice Martin Spencer said all the courts needed to do was decide if the report met the “minimum standards” required by the CPR.

The evidence of the claimant, Peter Griffiths, and his wife was accepted by Her Honour Judge Truman in full.

HHJ Truman found that Mr Griffiths was “indeed ill as he had described, and that he had proved the problems he had suffered from then and since”.

She also accepted the claimants’ evidence as to what they ate and when Mr Griffiths fell ill, but rejected the evidence on causation provided by the only expert, Professor Pennington, in his report and answers to the defendant’s questions under part 35.

Martin Spencer J said: “These were uncontroverted in the sense that the defendant did not call any evidence to challenge or undermine the factual basis for Professor Pennington’s report, for example by calling witnesses of fact or putting in documentary evidence; nor was there any successful attempt by the defendant to undermine the factual basis for the report through cross-examination of the claimant and his wife, nor by cross-examination of Professor Pennington.

“In this sense, and unusually, the evidence of Professor Pennington was truly ‘uncontroverted’.”

The High Court heard in Griffiths v TUI [2020] EWHC 2268 (QB) [2] that Mr Griffiths fell ill in August 2014 during a holiday at a hotel in Izmir, Turkey.

He spent three days being treated at a hospital in Turkey, where he was diagnosed with acute gastroenteritis. He lost weight and by the time of the trial in September 2019 was still suffering from stomach problems.

HHJ Truman said she would have awarded £29,000 in damages, given the seriousness of the condition.

Tui argued that Professor Pennington came to his conclusion “so abruptly, and with so little reasoning, and with so many issues left in the air and unresolved, that his opinion contained within that conclusion amounts to no more than bare ipse dixit (‘he said it himself’).

In the absence of direct authority on the point, Martin Spencer J said “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”.

As an example of an ipse dixit, he said Professor Pennington could have produced a one-sentence report, which stated: “In my opinion, on the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel.”

But though the report of Professor Pennington was short, “indeed one could describe it as ‘minimalist’”, it did not fall into this category as it met the form and content of an expert’s report as laid in the practice direction to part 35.

The judge went on: “However, what the court is not entitled to do, where an expert report is uncontroverted, is subject the report to the same kind of analysis and critique as if it was evaluating a controverted or contested report, where it had to decide the weight of the report in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual evidence.

“Once a report is truly uncontroverted, that role of the court falls away. All the court needs to do is decide whether the report fulfils certain minimum standards which any expert report must satisfy if it is to be accepted at all.”

Martin Spencer J said the defendant did not seek to challenge the reasoning that lay behind Professor Pennington’s conclusions by calling for him to be cross-examined, “as it had every right to do”.

“In those circumstances, the court must assume that there is some reasoning which lies behind the conclusion which has been reached and summarised, and that this reasoning is not challenged.”

Martin Spencer J concluded that HHJ Truman was not entitled to reject Professor Pennington’s expert report for the reasons she did. The appeal by Mr Griffiths was allowed.