Griffiths v TUI UK Limited  EWHC 2268 (QB)
Whilst on an all-inclusive package holiday in August 2014 at Aqua Fantasy Aqua Park Hotel in Izmir, Turkey, which was booked via a Defendant tour operator company, the Claimant became unwell with symptoms of gastric illness. The Claimant had eaten exclusively at the resort, other than one meal, three days into his two week holiday.
The Claimant tested positive for a number of pathogens, which resulted in significant symptoms of irritable bowel syndrome. The Claimant issued a claim against the Defendant under the Package Travel Regulations 1992.
Since Wood v TUI , package travel gastric claims such as Griffiths v TUI, have been defended either on the basis that the facts of the expert evidence are not made out or are false, or that the reasoning in the expert report is so deficient that it should not be accepted. While this remains good law, the decision in Griffiths v TUI has set out an important change with regards to obtaining expert evidence.
At first instance, the Claimant was unsuccessful. Whilst the Claimant had their own medical expert evidence to rely upon, the Defendant had chosen not to obtain their own evidence, despite having permission to. The trial judge was not satisfied that the evidence of the Claimant’s microbiologist showed, on the balance of probabilities, that the Claimant’s illness was caused by consumption of contaminated food or drink from the hotel. No award was given to the Claimant.
The Claimant appealed the decision to the High Court.
Justice Spencer allowed the appeal in the High Court, on the basis that, if you have expert evidence that is uncontroverted, and complies with Part 35 of the CPR, then the question of weight does not arise, and the court is not entitled to subject it to the same analysis and critique as if it were challenged.
The Defendant’s failure to challenge the expert evidence by way of either obtaining its own expert evidence or by cross-examination, therefore, enabled the Claimant to succeed in his claim.
The consequences of this case go beyond holiday sickness claims and even personal injury claims. It affects all cases involving Part 35 expert evidence.
Claimants therefore may now pursue claims previously considered too risky. For Defendants, courts may be more willing to grant them permission to obtain expert reports than before, but if this results in allocation to the multi-track, and therefore higher costs being claimed, it may become uneconomical for a Defendant to continue to defend the case, regardless of the prospect of success.
To answer our initial question, prior to any further guidance from the Courts, it may be prudent for Defendants to obtain (and seek permission to rely upon) their own expert evidence, where it is economical to do so. This decision is likely to have the biggest impact on claims allocated to the fast track, given there is no automatic right to obtaining expert evidence.
In fast track claims, an application to obtain expert evidence will be required, and justifications be made which are case-specific, also relying upon the decision in Griffiths v TUI to support a Defendant’s request for their own expert report.
Further, with regards costs, making an application is not cheap, and neither is the cost of obtaining a Part 35 compliant report from an expert, so the merits of applying to obtain expert evidence and rely upon it need to be thoroughly considered and weighed up against the potential value of the claim brought.
In our experience, where economical to do so, a Defendant obtaining their own expert evidence can add significant weight to their defence and goes further to challenge the Claimant’s case, then simply cross-examining a Claimant’s expert.
The Defendant has applied to appeal the High Court decision in Griffiths v TUI. If the Defendant’s appeal to the Court of Appeal is unsuccessful, many more gastric claims are likely to succeed. If they are successful on appeal, it is hoped further clarification would be given as to the evidence required to prove causation. Now, to play the waiting game…
Crawford Legal Services
At Crawford Legal Services we have a team of qualified lawyers with significant experience in handling a broad range of travel and international legal cases, including pursuing and defending claims brought under the Package Travel Regulations and under Legal Expenses Insurance cover, following a wide variety of incidents and accidents abroad. Please do not hesitate to contact us with any queries. For more information contact Alison Matthew on firstname.lastname@example.org