A Supreme Court hearing last month into a claim of gastric illness brought by a Tui customer could have significant implications for future holiday illness claims and the defence against them.
The case of Tui v Griffiths also has wider implications for the treatment of expert witness evidence in courts.
Peter Griffiths brought a claim against Tui under the 1992 Package Travel Regulations, rather than the revised 2018 Regulations, after falling ill at an all-inclusive resort in Turkey in 2014. The claim pre-dates the explosive growth in holiday sickness claims in 2016-17 and there is no suggestion it was not genuine.
More: Analysis: Gastric illness case reaches final court of appeal
Law firm Irwin Mitchell – well known to industry lawyers as a specialist in no-win, no-fee personal injury claims – brought the claim on Griffiths’ behalf. It relied on the expert evidence of a microbiologist who, in written evidence, argued Griffiths’ illness was most likely caused by food and drink at the hotel.
Tui failed to provide its own expert evidence and its lawyers did not cross-examine the expert witness. But counsel for Tui challenged the evidence in their final submission, arguing it did not prove the hotel food or drink made Griffiths ill.
The County Court judge agreed the evidence was insufficient and dismissed the claim. Griffiths’ lawyers appealed and the High Court overturned the decision, noting the expert evidence was “uncontroverted”, meaning unchallenged by rival evidence or cross-examination.
Tui appealed, in turn, and the Court of Appeal reversed the High Court ruling, but one of the three Appeal Court judges dissented, leading Griffiths’ lawyers to appeal to the Supreme Court.
Courts generally accept expert evidence unless it is contested, or ‘controverted’. Lawyers have warned the Appeal Court decision could lead to expert witnesses producing more‑detailed and costly reports.
However, expert witness evidence has been used in multiple holiday illness claims. Industry lawyer Sarah Prager, a barrister at Deka Chambers, noted the “exponential increase” in food poisoning claims in 2017 and argued: “It has proven very easy for claimants to obtain expert evidence that their illness was due to provision of contaminated food.”
The boom in holiday illness claims has since been curbed by extension of the fixed recoverable costs (FRC) regime, which limits the legal costs in civil cases and has discouraged involvement of claims management companies.
More: Analysis: Gastric illness case reaches final court of appeal