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  • Writer's pictureTheo Huckle QC

So near and yet so far... how to prove causation issues (or not)

Causation issue

You get one of the most eminent experts on the planet. ✔️

He says the breach caused the illness. ✔️

The other side have permission to serve counter evidence but decide not to. ✔️

Your expert’s evidence is not challenged, he is not asked to attend the trial. He is not cross examined. ✔️

You win on the causation point then?

✖️✖️✖️✖️ Oh no you don’t. 😱

Griffiths v Tui UK Ltd [2021] EWCA Civ 1442 7 October 2021

Majority of the CA overturns the claimant’s successful appeal to Martin Spencer J. Majority made up of 2 chancery judges who may see things slightly differently from most PI lawyers?

Strong dissent from Bean LJ who says the trial was rendered unfair against the claimant, ‘who must wonder what he did wrong’.

Will the SC get to see this?

PRACTICE POINT: do NOT assume uncontroverted expert evidence will be accepted/applied by the court. The court retains the overall decision whether to accept the expert’s opinion. Make sure your report does cover off the issue properly, with proper reasons given to explain the opinion offered.

It’s a rare case where I don’t see my experts in con before they finalise their reports on any likely contentious issues. Just saying. 😉


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