EWJ June 2024 web - Journal - Page 12
Beware of Not Controverting
Expert Evidence
by Gearoid Carey, Partner and Gerard Kelly, Partner - www.mhc.ie
More specifically, it raised an issue as to the scope of
the rule that a party should challenge by cross-examination evidence it wishes to dispute in submissions at
the end of the hearing. Specifically, did that rule extend to attacks on the reasoning of an expert witness
and, if so, was the conduct of this trial unfair?
The UK Supreme Court has recently given guidance
on the proper approach the court should adopt when
faced with uncontroverted expert evidence.[1] Ultimately, it concluded that only in exceptional cases,
with seven classes of examples given, was a court entitled to disregard unchallenged expert evidence. Although it is a UK decision, this is persuasive before the
Irish courts. Not only is the decision one of the highest authority, but the UK Supreme Court’s reasoning
is founded on procedural fairness, which resonates
strongly with Irish Constitutional principles. Accordingly, it is likely to be approved by the Irish courts
should a relevant factual scenario ever fall to be
considered in Ireland.
In addressing these, Lord Hodge recounted some
well understood propositions, including that:
1. The burden of proof rests on the party advancing
the case
2. The role of an expert is to assist the court, but must
not usurp the judge as the ultimate decision maker,
and
3. The judge is to assess the adequacy and persuasiveness of an expert’s evidence
Background
Mr Griffiths, the appellant, bought an all-inclusive holiday from TUI, the respondent. During the holiday,
he suffered gastric illness from allegedly contaminated
food and drink consumed in the hotel. Proceedings
were brought against TUI under the applicable package holiday regulations and for breach of contract. In
support of his case, Mr Griffith relied on the expert
evidence of a microbiologist regarding causation, who
maintained the illness was caused as Mr Griffin had
argued. The expert’s written report was terse and
gave short answers to questions posed regarding the
report under applicable court rules. TUI did not submit its own expert evidence from a microbiologist and
did not require Mr Griffith’s microbiologist to attend
for cross-examination, as his evidence was admitted
on paper.
Fundamentally, however, the proceeding are
adversarial in nature and the role of the judge is to
ensure they are fair. One rule to ensure fairness is the
requirement to challenge, by cross-examination, the
evidence of any witness of the opposing party if there
will be a submission to the court that the evidence
should not be accepted on that point.
Ultimately, the Supreme Court determined that,
unless the uncontroverted expert’s evidence is incredible, it should be accepted. Lord Hodge further
outlined that not following an opinion expressed by
an expert who has not been subjected to cross-examination will usually render a trial unfair. He explained
that a central principle of fairness is that the parties
must each have a fair opportunity to address the case
made against them. In this case, however, the critique
that prevailed at trial was raised only in the skeleton
argument and in closing submission. At that point, it
was far too late for Mr Griffiths’ expert to attend to
answer the criticism made against his report. However, the Supreme Court did recognise that it was not
appropriate to apply the rule rigidly in all cases and
there were circumstances where it may not apply. The
Supreme Court went on to identify seven classes of
exceptions where it may be permissible for the court
to disregard uncontroverted expert evidence.
Examples include where:
l The evidence is manifestly incredible so that
cross-examination would make no difference
Instead, counsel for TUI had, for various reasons, criticised the expert report as poorly reasoned and unreliable in a skeleton argument filed the afternoon
before and in closing submissions at the hearing. The
trial judge agreed, holding that it was for Mr Griffiths
to prove his case and the expert’s evidence was not
satisfactory. In the High Court[2], that decision was
overturned. However, in the Court of Appeal, the
High Court decision was overturned, with the County
Court trial decision confirmed by a majority. One of
those in the majority, Lady Justice Asplin said that she
could “see nothing which is inherently unfair in seeking to
challenge expert evidence in closing submissions”. Although
she described not offering contrary evidence or not
cross-examining the expert as a “high risk strategy”, she
said there “was nothing impermissible about it”.[3] Mr
Griffiths brought a further appeal to the Supreme
Court.
l There is an obvious mistake in the expert’s
evidence, or
l The basis for the expert report is not supported by
the underlying evidence of witnesses with personal
knowledge of the facts relevant to the case.
Supreme Court decision
The Supreme Court decision delivered by Lord
Hodge was unanimous in upholding Mr Griffith’s
appeal. Essentially, for the UK Supreme Court, the
case involved a question of the fairness of the trial.
EXPERT WITNESS JOURNAL
In considering the evidence put before the court at
trial, Lord Hodge also expressed the view that Mr
Griffiths had succeeded in proving his case on the balance of probabilities. He also noted that permitting a
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JUNE 2024