Griffiths v TUI UK Ltd [2023] UKSC 48

In a recent case, Griffiths v TUI UK Ltd, the Supreme Court delivered a unanimous judgment on 30 November 2023, redefining the rules around challenging expert evidence in civil litigation.

Factual Background:

Mr. Griffiths, having suffered from acute gastroenteritis during a holiday in Turkey, sued TUI for breach of contract. He alleged that contaminated food or fluid in the hotel caused his illness. TUI, instead of presenting its expert evidence or cross-examining Mr. Griffiths’s expert, criticised the report in skeleton arguments and closing submissions only.

Lower Court Decisions on Expert Evidence

The trial judge, agreeing with TUI, ruled that Mr. Griffiths failed to prove causation. The High Court, on appeal, overturned this decision. However, the Court of Appeal (2-1 majority) reinstated the trial judge’s ruling.

Supreme Court’s Verdict

The Supreme Court rejected the Court of Appeal’s approach, emphasising the fundamental rule in Browne v Dunn. Lord Hodge clarified that a judge’s decision to disregard an uncontroverted expert opinion without cross-examination could render the trial unfair.

This rule dictates that during cross-examination, a party cannot rely on contradictory evidence without first presenting it to the witness, allowing them a chance to address the contradiction. The rule serves as an anti-ambush measure, preventing a party from introducing evidence that opposes a witness’s testimony without affording the witness an opportunity to respond.

The rule ensures fairness and prevents “trial by ambush,” requiring cross-examiners to notify the opposing witness of the case they intend to rely on for contradiction. Failure to follow this practice prohibits later introduction of evidence to contradict the witness’s testimony. The rule’s application is not limited to attacks on witness honesty but extends to essential procedural fairness.

Key Principles Reasserted

– Uncontroverted expert evidence, unless incredible, should  be accepted.
– The rule in Browne v Dunn applies to both fact and expert witnesses, ensuring essential procedural fairness.
– The defendant cannot adopt a “high-risk” strategy, forcing the claimant to prove its case without addressing criticisms before trial.

Exceptions to Cross-Examination Requirement

Lord Hodge outlined seven exceptions where cross-examination might not be necessary, considering factors like proportionality, manifest incredibility, and prior opportunities for response.

Implications and Commentary

The decision clarifies the scope of challenging expert evidence, promoting fairness in adversarial proceedings. While trial counsel may face challenges, the Supreme Court’s guidance offers a nuanced approach, ensuring a balance between fairness and avoiding disproportionate expenses.

In conclusion, the Griffiths case reaffirms the principles of a fair trial, stressing the importance of parties having a genuine chance to meet the case against them, without succumbing to trial by ambush tactics.

This article is for general purposes only you must not rely on this for legal purposes.  You must seek independent advice.

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