This case concerns a claim against a package holiday company for breach of contract.
Mr. Griffiths booked an all-inclusive holiday in Turkey for himself, his wife and his son which was provided by the defendant company. All went well until Mr. Griffiths contracted acute gastroenteritis on the holiday which he attributed to his consumption of contaminated food or drink served at the hotel where he was staying. The initial bout of serious gastroenteritis gave way to long-term associated problems and Mr. Griffiths decided to bring a claim for breach of contract and damages against Tui under the Package Travel, Package Holidays and Package Tours Regulations 1992 and the Supply of Goods and Services legislation.
Mr. Griffiths relied on the expert evidence of a microbiologist, Professor Pennington, whose opinion stated that, on the balance of probabilities, his illness had been caused by contaminated food or fluids from the hotel. Tui didn’t produce any expert evidence in support of their defence, neither did they ask him to attend the trial to be cross-examined. They did however issue written questions to Professor Pennington under Court Protection Rules (CPR) 35.6 which he duly answered. They challenged his report in their skeleton argument which was only served the afternoon before trial. They alleged that the report was incomplete, insufficient and failed to address other possible causes for the illness. They asserted that it was a bare ‘ipse dixit’ i.e. an assertion without proof. The trial judge accepted Tui’s argument and agreed that Mr. Griffiths had not proved causation in his claim. The claim was dismissed. This was the beginning of quite a saga as the claim went back and forth through the court system ultimately landing in the highest authority, the Supreme Court.
After losing in the court of first instance, Mr. Griffiths appealed to the High Court. The High Court held that the expert report complied with CPR 35, was uncontroverted and was therefore not a bare ipse dixit. Once the report meets those standards, if it truly uncontroverted, the role of the court to analyse and evaluate the expert report falls away. The appeal was allowed. Tui then turned to the Court of Appeal who allowed the appeal by a majority decision but with one dissenting judge. The majority said that the Court was not a mere “rubber stamp“. The trial judge at first instance had been entitled to evaluate the report and find it lacking, even without contradictory evidence or cross-examination. So long as the expert’s authenticity is not in question, last minute challenges should be allowed. The dissenting Judge felt strongly that Mr. Griffiths had not had a fair trial of his claim and that last minute submissions should not be allowed, “the courts should not allow litigation by ambush“. The final appeal, by majority in Tui’s favour, was allowed.
Permanence, perseverance, and persistence in spite of all obstacles, discouragements and impossibilities. It is this that in all things distinguishes the strong soul from the weak.”
Thomas Carlyle
Mr. Griffiths appealed yet again and took his claim to the highest authority in the land, the Supreme Court. The Lords Justice considered the case very carefully from all angles. The overriding principle was that the trial should be fair and that it is the task of a Judge in conducting a trial in an adversarial system to make sure that it is fair. The judiciary and the writers of procedural rules should always work towards that end and it is of paramount importance. Lord Hodge, who issued the unanimous judgement on behalf of the Court, reiterated a long-standing rule in the law of Evidence, supported by much case law, and with which he agreed:
“In general, a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit that the evidence should not be accepted on that point. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will have difficulty in submitting that the evidence should be rejected.“
This rule (often referred to as the rule in Browne v Dunn) has extensive legal precedent in much case law and emphasises the importance of fairness of the legal proceedings as a whole.
The Judge considered that Mr. Griffiths had not had a fair trial. His expert, Professor Pennington, should have been cross-examined and allowed to explain or expand his evidence to the court. Both the trial judge and the majority of the Court of Appeal “erred in law in a significant way“. The Supreme Court must therefore make its own judgement on the evidence and found that causation, albeit in very general terms, had been established on the balance of probabilities. The High Court’s order, which awarded £29,000 in damages plus interest to Mr. Griffiths, was reinstated and the Appeal allowed.
Link: First Appeal: Mr Peter Griffiths v TUI UK Limited [2020] EWHC 2268 (QB) (20 August 2020)
Link: Supreme Court Judgment TUI UK Ltd v Griffiths [2023] UKSC 48 (29 November 2023)
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