Considering how the Supreme Court’s TUI -v- Griffiths decision could assist litigants seeking permission for expert evidence late in the day. The recent UK Supreme Court judgment in the case of TUI -v- Griffiths has attracted significant attention and discussion amongst litigation practitioners due to its implications for how the Court will treat expert evidence.
Whether it be a medical professional, a property valuer or forensic accountant, the crucial role experts can play in litigation cannot be understated. They are the only witnesses permitted to give evidence of opinion to the Court, and as a consequence, the format and treatment of their evidence can be absolutely pivotal in the outcome of a case.
The principles set down in TUI -v- Griffiths take this a step further, constraining the Court’s ability to go behind or dismiss an expert’s evidence in a way the Court was not restricted before. Specifically, the decision reinforces a primary rule that an expert’s evidence on any material point must be challenged by cross-examination if the opposing party wishes to submit to the Court that the expert’s evidence on that point should be rejected.
Crucially, the decision does set out specific exceptional circumstances in which a party may be permitted to criticise or challenge an expert’s evidence despite the lack of cross-examination, but the exceptions are narrow. In the circumstances, the clarification of the rules on expert evidence in TUI -v- Griffiths does pose an increased risk of inequality of arms or an unfair Trial if a party has little to no scope to challenge the opponent’s expert.
While, of course, ideally a party to litigation will be able to avoid this scenario by thinking ahead and ensuring it secures permission for its own expert at case management stage of proceedings, there are a multitude why this may not have been achievable. For example, a litigant in person who does not instruct solicitors until some way into proceedings may not appreciate the consequences of not obtaining expert evidence, or indeed the facts and circumstances of a case can evolve as the proceedings progress such that the need for more expert input perhaps does not became apparent until after directions have been given.
Therefore, while far from a desirable scenario, the fact is that sometimes litigants sadly can and do find themselves facing the prospect of a Trial without their own expert to rely on and suitably challenge the opponent’s expert witness. The narrowness of the TUI exceptions could, therefore, serve as very persuasive grounds for a party who needs to apply for permission for their own expert evidence at a fairly late stage in proceedings.
Indeed, Judges must consider whether the party seeking that permission will be at increased risk of an unjust Trial if the permission is refused, due to the restrictions that TUI v Griffiths places on challenging another party’s expert. If the party seeking permission for expert evidence will be left effectively unable to challenge the opposing expert if permission is refused, it is difficult to see how a Judge could deem the refusal as just or fair.
Berry Smith recently successfully obtained such permission for expert evidence for a Client on the day listed for Trial, resulting in the adjournment of the Trial until the client had obtained his own expert evidence, with the Judge citing the overarching importance of fairness and the Overriding Objective, bearing in mind the newly narrowed restrictions on challenging expert evidence in TUI -v- Griffiths and the prejudice which would likely be imposed upon our Client if he was not afforded the chance to get expert evidence of his own
If you are contemplating litigation or are in dispute with another party over issues which are likely to require expert input, whether this be in relation to your property, business or other commercial interests, Berry Smith can offer detailed advice and assistance on gathering the evidence you need to navigate the dispute to a satisfactory conclusion. Please do not hesitate to contact us on 02920 345 511 or dispute@berrysmith.com.
