The dawn of a new era of procedural fairness for Claimants?

TUI UK Ltd v Griffiths [2023] UKSC 48

In late November 2023 the UK Supreme Court unanimously ruled in favour of the appellant, Mr Griffiths when delivering its much-anticipated judgment in the case of TUI UK Limited v Griffiths. Mr Griffiths sought damages for breach of contract occasioned as a consumer under the Package Travel, Package Holidays and Package Tours Regulations 1992 and Sections 4 and 13 of the Supply of Goods Act 1982. This appeal concerned the wider issue of the fairness of the trial and specifically the issue of the applicability of the general rule that in civil cases, evidence given by a witness of the opposing side on a contentious material point must be challenged during cross examination.

Background

The appellant, Mr Griffiths had been on an all-inclusive package holiday to Turkey organised by TUI with his family in August 2014. Within 48 hours of arriving in Turkey, Mr Griffiths fell ill suffering from gastric illness. After seeking medication from a local pharmacy which did not alleviate his symptoms, Mr Griffiths was admitted to Kusadasi Hospital for three days and two nights. He was diagnosed with acute gastroenteritis, with samples indicating the presence of multiple parasitic and viral pathogens.

Before arriving in Turkey, Mr Griffiths had eaten at Burger King in Birmingham Airport but in the 48 hours before becoming unwell in Turkey, he had eaten exclusively at his hotel, with the exception of one meal at a local restaurant on the date that he attended the pharmacy. Five years later in June 2019, Mr Griffiths was still suffering from gastric issues. An indication was initially given by the trial judge of an award of £29,000 in compensation was appropriate in this case and incorporated pain, suffering, loss of amenity and care and medication costs.

At trial, Mr Griffiths relied on expert witness evidence from gastroenterologist Professor Pennington, who’s findings were that it was more than likely that that Mr Griffiths’ gastroenteritis was caused by the food and drink he had consumed at his hotel. At no point did TUI cross examine Professor Pennington’s evidence or indeed adduce their own expert gastroenterologist report to dispute the issue of causation. However, in their closing submissions they directed criticism at the conclusions made by Professor Pennington in his report, arguing that the standard to be met in proving Mr Griffiths’ case on the balance of probabilities had not been met. The trial judge agreed with this analysis and dismissed the claim, criticising Professor Pennington’s report for not meeting the standard of the balance of probabilities to establish causation.

Mr Griffiths then appealed this decision to the High Court in England and Wales who found in his favour. TUI’s subsequent appeal to the Court of Appeal was upheld and Mr Griffiths appealed to the UK Supreme Court.

Judgment of the Supreme Court

The Supreme Court unanimously allowed Mr Griffiths’ appeal, maintaining that the trial judge had erred in both permitting criticisms to be made of Professor Pennington’s report during closing submissions and formulating such criticisms as part of the Court’s judgment. The Court reached a conclusion, based on the evidence, that it was more likely than not that the food and drink consumed at the hotel was the cause of Mr Griffiths’ gastric illness.

The Court reiterated that the adversarial nature of the UK Judicial System, necessitates the widely encompassing principle, that a witness must be afforded the opportunity to expand upon queries arising from the evidence they have given to the Court and where applicable defend points raised which may undermine their professional reputation. The general rule prevails that evidence given by a witness of the opposing side which concerns a contentious material point must challenge by cross examination unless an exemption applies.

The Supreme Court listed seven (non-exclusive) instances where the requirement may be relaxed and in applying the principles, held that fairness required that the expert witness be given the opportunity to respond to TUI UK Ltd’s criticisms and that the trial judge had denied Mr Griffiths a fair trial.

In accepting TUI’s criticisms of the report as part of her judgment, the trial judge had failed to afford Mr Griffiths a fair trial. Finding in favour of Mr Griffiths, fairness, a pillar of the UK Judicial System, remains unscathed following this ruling and this judgment should be welcomed by claimants and expert witnesses alike, in providing an insightful starting point regarding the provision of expert witnesses, as well as serving as a reminder of the concern shown by the Court towards the Claimant’s right to a fair trial.

Whilst this is a Judgment in England and Wales it is likely to be followed by the Courts of Northern Ireland.

If you would like any further information or advice, please contact Lucy Clarke from our Litigation & Dispute Resolution team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice.