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Published 29 October 2021
A common issue in defending compensation claims arising out of data breaches, is the evidence of the claimant’s alleged distress. Whatever the stage, whether it be in pre-action correspondence or at trial, there is a call for the claimant to provide expert evidence to prove the damage caused by the data breach.
When expert evidence is provided, the defendant must grapple with how to challenge the claimant’s expert report, either by: (a) instructing their own expert; (b) seeking permission for cross-examination at trial; and/or (c) utilising the mechanism under CPR 35.6 to pose written questions to the expert. Whilst not a data protection claim, the decision in Griffiths v TUI UK Limited provides useful guidance on the practical implications for any party commissioning or challenging expert evidence.
The claimant, Peter Griffiths, purchased from the defendant, TUI UK Limited (“TUI”), an all-inclusive holiday in Turkey in August 2014. Mr Griffiths suffered a gastric illness whilst on holiday and claimed that his illness was a result of consumption of food or fluid at TUI’s hotel. Mr Griffiths brought a claim for damages arising out of breach of contract.
TUI had permission from the court to obtain a report of a gastroenterologist and both parties had permission to obtain expert evidence from microbiologists to deal with causation. TUI did not serve any expert reports within the time specified and was left without any expert evidence for the purposes of trial. As such, on the issue of causation, the only expert evidence before HHJ Truman was the report of Mr Griffiths’ expert. Mr Griffiths’ expert concluded that, on the balance of probabilities, he acquired his gastric illness as a result of consuming contaminated food or fluid at TUI’s hotel.
TUI put CPR Part 35 questions to Mr Griffiths’ expert but did not submit its own expert evidence, nor call for Mr Griffiths’ expert to be cross-examined at trial. Consequently, Mr Griffiths’ evidence, unusually, stood “truly ‘uncontroverted’”.
HHJ Truman accepted that Mr Griffiths had been ill, but, persuaded by TUI’s Counsel’s submissions at trial which critiqued Mr Griffiths’ sparse expert’s report, she dismissed Mr Griffiths’ claim. HHJ Truman ruled that Mr Griffiths’ expert evidence was deficient in a number of respects and held that “it is open for a defendant to sit back and do nothing save make submissions, and if the evidence is not sufficient to satisfy a court on the balance of probabilities, a claimant will not succeed” [para 28].
Last year Mr Justice Spencer overturned HHJ Truman’s decision.
Spencer J ruled1 that it was is wrong for HHJ Truman to embark on an enquiry into the quality of Mr Griffiths’ expert’s report. Where expert evidence is ‘uncontroverted’, the court’s role is limited to ensuring that the report:
(a) is more than a bare assertion (i.e. a one sentence report stating a bare conclusionwithout proof); and
(b) substantially complies with the ‘minimum standards’ under CPR Practice Direction 35.
As such, Mr Griffiths’ expert report was to be accepted by the court.
TUI contested the above restrictions Spencer J’s judgment put on the court when evaluating “uncontroverted” expert evidence.
The Court of Appeal (“CoA”) overturned the High Court’s ruling and reinstated the decision of HHJ Truman in favour of TUI. The majority held that it is wrong for a court to be bound to accept expert evidence if it has not been challenged by another expert or factual evidence; “The judge cannot be prevented from considering the quality of such evidence in order to determine whether the burden of proof is satisfied just because it is uncontroverted...the court is not a rubber stamp.” [para 65].2
TUI’s closing submissions on Mr Griffiths’ expert evidence did not suggest that Mr Griffiths’ expert’s report was wrong – just that it did not enable Mr Griffiths to satisfy the burden of proof as to causation. The CoA ruled that “As part of a fair trial, it seems to me that it was essential that Judge Truman engaged with [the defendant’s] submissions and determined whether causation had been proved to the requisite standard. She did so quite rightly and determined that question on the evidence before her.” [para 67].
Prior to the recent CoA’s decision, pressure was on the defendant to carefully consider whether it had any evidence to challenge its opponent’s expert evidence – by way of its own expert, or factual evidence. The defendant should ensure to seek permission to cross-examine an expert if it wants to challenge any part of the claimant’s expert report. If not, the trial judge may be obliged to accept even weak expert evidence.
Following the CoA’s decision, the court can now consider the quality and weight afforded to undisputed expert evidence, and defendants may choose to “sit back and do nothing”, only critiquing the claimant’s expert reports in its submissions: “It may be a high risk strategy to choose neither to adduce contrary evidence nor to seek to cross-examine the expert but there is nothing impermissible about it” [para 65]. This appears to be a favourable decision for defendants.
1 EWHC 2268 (QB) https://www.bailii.org/ew/cases/EWHC/QB/2020/2268.html 2 EWCA Civ 1442 https://www.bailii.org/ew/cases/EWCA/Civ/2021/1442.html
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