TUI UK Ltd v Griffiths

This case started with a package holiday in Turkey. Mr Griffiths became seriously ill during the trip and later claimed that contaminated food or drink supplied at the hotel caused his gastroenteritis and long-term symptoms. He sued TUI, the tour operator, under consumer and services legislation pleaded in the case.

The important feature was not just the illness itself, but how the evidence was handled. Mr Griffiths relied on factual evidence from himself and his wife, which the trial judge accepted, and on a microbiologist’s expert report saying that, on the balance of probabilities, hotel food or fluid caused the illness. TUI did not put forward competing expert evidence on causation and did not require that expert to attend for cross-examination.

Instead, TUI attacked the report in closing submissions, arguing that it did not properly explain why other possible causes had been ruled out. The trial judge accepted that criticism and dismissed the claim. The Supreme Court had to decide whether that was fair in an adversarial civil trial where the expert evidence had not been properly challenged during the evidence stage.

The central issue was not whether businesses can ever criticise an opposing expert report. They can. The real question was when and how that criticism must be made if the point is material to the outcome.

The Supreme Court framed the issue as one of trial fairness. Could the trial judge reject the claimant’s case because of alleged deficiencies in an expert report when that expert’s evidence was uncontroverted, not cross-examined, not shown to be illogical or incoherent, and not challenged by contrary evidence? Or did fairness require TUI to put those criticisms to the expert in a way that gave him a proper chance to explain or clarify his reasoning?

This mattered because civil litigation in the UK is adversarial. Courts expect parties to identify and test disputed evidence openly. If a party keeps back a detailed attack until final submissions, the witness may never get the chance to answer it, and the judge may be deciding the case on a criticism that was never fairly aired during the evidence process.

The Supreme Court allowed Mr Griffiths’ appeal. It held that the general rule in civil cases is that if a party wants the court not to accept a witness’s evidence on a material point, that party should challenge the evidence by cross-examination. The court said that rule applies to expert witnesses as well as factual witnesses.

The reason is fairness. Fairness is owed not only to the opposing party, but also to the witness and to the court process itself. Cross-examination, or another fair method of challenge, gives the witness a chance to explain, clarify or defend the opinion being criticised. That is especially important where the criticism is that the evidence is inaccurate, inadequate or incomplete.

The court also made clear that the rule is flexible, not absolute. There are exceptions. For example, a court may reject an uncontroverted expert report if it is a bare assertion with no reasoning, contains an obvious mistake, is illogical or inconsistent, rests on assumptions not made out by the evidence, or where the expert has already had a sufficient chance to answer focused criticism. But those exceptions did not apply here.

The Supreme Court looked closely at TUI’s conduct in the litigation. TUI had denied causation and put the claimant to proof, but it chose not to rely on expert microbiology evidence of its own. It also failed to serve a gastroenterology report in time and went to trial without expert support on causation. It did not call factual witnesses it had prepared, and it did not require Professor Pennington to attend for cross-examination.

The court accepted that Professor Pennington’s report was terse and could have been fuller. But it was not a bare assertion. It contained reasoning, and his written answers to procedural questions helped explain his approach. The Supreme Court said TUI’s written questions had not clearly put the later criticisms to him, and the detailed attack only appeared in skeleton arguments served on the afternoon before trial.

By then, it was too late for the claimant to arrange for the expert to attend and answer those points.

Because TUI had not challenged the expert fairly during the evidence stage, it was not fair for the trial judge to accept the detailed criticisms in submissions and reject the claimant’s case on that basis.

If your business faces a customer claim involving a technical issue, this case is a warning against passive defence tactics. You cannot safely assume that a weak-looking expert report will collapse on its own at trial. If the report matters to the outcome, you need a plan for challenging it properly.

This applies well beyond travel claims. A retailer may face expert evidence about product contamination. A construction business may face engineering evidence. A software company may face forensic evidence about system failure. A professional services firm may face accounting or valuation evidence. In each case, the court will care about whether the challenge was made fairly and in a way that allowed the witness to respond.

The practical message is to identify early whether the dispute is really about facts, expert opinion, or both. If expert opinion is central, decide whether to ask focused written questions, obtain your own expert, seek an experts’ meeting, or cross-examine. Cost control matters, especially in lower-value claims, but fairness still sets the minimum standard.

For business owners and in-house teams, the safest approach is to treat expert evidence as a project with deadlines, documents and decision points. The earlier you identify the technical issue, the more options you have to challenge it efficiently.

This case also shows that proportionate litigation does not mean informal litigation. Lower-value disputes still need disciplined handling. A short, focused challenge made at the right time is usually better than a long attack delivered too late.