Litigation By Ambush? Expert Evidence Uncontroverted… Until Closing Submissions

Co-authored by Amy Held

Griffiths v Tui (UK) Ltd  [2021] EWCA Civ 1442

Background

This appeal raised the question of "whether and if so, in what circumstances, the court can evaluate and reject what is described as an "uncontroverted" expert's report"; i.e., one in respect of which there is no factual evidence undermining the factual basis of the report, no competing expert evidence, and no cross-examination of the expert takes place.

The expert report in question ('the Report') was prepared by one Professor Pennington. It was adduced by the Claimant Respondent ('Mr Griffiths') in respect of gastric illness allegedly suffered as a result of consuming contaminated food or drink whilst on an all-inclusive holiday package provided by the Appellant Defendant ('TUI'). Mr Griffiths sought to rely on the Report in relation to causation.