Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) (20 August 2020)

his appeal raises a fundamental question concerning the proper approach of a court towards expert evidence which is “uncontroverted”… Where such evidence is uncontroverted, is it open to the court nevertheless to examine the contents of the report and the reasoning leading to the expert’s conclusions and reject those conclusions if the court is dissatisfied with the reasoning? Or is the court obliged, subject to exceptional circumstances, to accept the expert’s conclusions? [2]

…on the issue of causation, the only expert evidence before J was the report and the part 35 answers of Professor Pennington. These were uncontroverted in the sense that D 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 D 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”. [10]

…the report of Professor Pennington was short, indeed one could describe it as “minimalist”. [11]

C submits that J erred in rejecting the expert evidence of Professor Pennington in the absence of any evidence, whether expert or otherwise, challenging or contradicting his conclusion. [19]

D submitted that there is no rule of law to the effect that expert evidence adduced by one party must be accepted in the absence of expert evidence challenging or contradicting it. [23]

D effectively submitted that, before expert evidence can be accepted at all, it must pass a certain threshold, it must reach a certain standard which, he submitted, Professor Pennington’s evidence palpably failed to do as clearly found by J. [24]

In general, where an expert’s opinion is disputed, that opinion will carry little weight if, on proper analysis, the opinion is little more than assertion on the part of the expert… [29]

In the present case, Professor Pennington’s conclusion is said by D to come 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. In those circumstances, it is contended that the conclusion is worthless. If that is correct, it would mean that the evidence adduced by C was never capable of proving his case on causation: before the matter ever came to trial, D could have applied for summary judgment on the basis that C’s case, taken at its highest, could not succeed. D did not do so but chose instead to allow the matter to come to trial, perhaps in the hope that cross-examination of C would undermine the factual basis for Professor Pennington’s report and conclusion. If, so, that gamble did not pay off… the factual basis for Professor Pennington’s report and the factual findings made by J were identical. Having thus failed to challenge the factual basis for the report, D was thrown back onto its attack on the substance of the report and its assertion that the Professor’s opinions were bare ipse dixit. [30]

So, where [bald statement of his opinion] is not controverted, is it worthless or not? [32]

…a court would always be entitled to reject a report, even where uncontroverted, which was, literally, a bare ipse dixit, for example if Professor Pennington had produced a one sentence report… 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. [33]

What are those minimum standards? In this regard, it is unnecessary to look further than the Practice Direction accompanying CPR Part 35. [34]

for an expert report to pass the threshold for acceptance as evidence in the case, it must substantially comply with the above Practice Direction. Judged against this standard, it seems clear to me that Professor Pennington’s report did comply [35]

J was not entitled to reject the report and evidence of Professor Pennington for the reasons that she did. However strong the criticisms of Professor Pennington’s report… they went to an issue with which J was not concerned, namely the weight to be ascribed to the report, that being an issue which would only have arisen if the report had been controverted… By ascribing, effectively nil weight to the report, J was ruling that the report did not meet the minimum requirements for it to be accepted as evidence in the case, and in that respect I take the view that she was wrong. [37]