As the old saying goes, you wait ages for a London bus; then two arrive at once.

Today (29 November 2023) the Supreme Court (Lords Hodge, Lloyd-Jones, Briggs, Burros and Stephens) handed down judgment in TUI v Griffiths [2023] UKSC 48 (‘Griffiths’), while the Court of Appeal (Carr LCJ, Vos MR, Birss LJ) handed down judgment in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 (‘Churchill’).

In Griffiths, the claimant pursued a consumer claim against the defendant package holiday provider, having allegedly contracted gastric illness while on holiday in Turkey. Churchill concerned the alleged encroachment of Japanese knotweed into the claimant’s property at (spell check on) 9 Gellifaelog Terrace, Penydarren, Merthyr Tydfil.

What relevance, one might ask, does either decision have to family law in general and financial remedies specifically? Or, for those old enough to remember the Not The Nine O’Clock News skit about That’s Life, what does this have to do with us?

The answer involves general legal issues of some importance; namely (1) does the court does have the power to compel non-court-based dispute resolution? and (2) fair trial principles including whether in civil litigation a party who criticises an uncontroverted expert has to call them to test their evidence, as opposed to criticising it in submissions.

Churchill: Headline point: the court does have the power to compel ADR/NCDR

In Churchill the defendant local authority applied to stay the claim, arguing that the claimant should have made use of its Corporate Complaints Procedure. At a directions hearing on 12 May 2022, DDJ Kempton Rees dismissed the stay application, concluding that the court was bound to follow Dyson LJ’s earlier statement of the law in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (‘Halsey’), to the effect that the court could not compel parties to mediate. In Halsey at [9], speaking for the court (Ward, Laws LJJ), Dyson LJ commented:

‘It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.’

The local authority appealed, which was referred by the circuit judge (HHJ Harrison) to the Court of Appeal. The central issue was whether the court could compel parties to mediate (or otherwise attend ADR (alternative dispute resolution), which some have re-branded as NCDR (non-court dispute resolution)). However, the first question was whether or not the Court of Appeal in Griffiths was bound by its earlier (2004) decision in Halsey.

Precedent

Without wanting this blog to become a law lecture, it is important at this stage to remind oneself of the rules of precedent. The decisions of a superior court bind an inferior court. The main reasoning or ‘ratio decidendi’ of a judgment has binding effect, whereas extraneous judicial comment or ‘obiter dicta’ does not. Or, as the Earl of Halsbury put it in Quinn v Leathem [1901] UKHL 2:

‘a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.’

It follows that the Court of Appeal is bound by the Supreme Court/House of Lords, and its decisions bind circuit judges and district judges.

Must the Court of Appeal follow its own earlier decisions? In Young v Bristol Aeroplane [1944] KB 718 the Court of Appeal held that it generally should, save in three areas: (i) where two decisions are in conflict, (ii) where an earlier CA decision cannot stand with higher authority or (iii) where a decision has been made in ignorance or forgetfulness of inconsistent authority (‘per incuriam’ – a concept which has been of great assistance to Mr Justice Mostyn in cases such as UL v BK [2013] EWHC 1735 (Fam). Or, indeed, where it turns out that there has been a confusion between what part of an earlier decision was binding, or, on the facts of Griffiths, have parts of the judgment of Dyson LJ in Halsey been applied as binding/ratio when in fact it should have been regarded as non-binding obiter?

Outcome in Churchill

Vos MR handed down the judgment of the court. The following points should be noted:

• As to whether the above passage from the judgment of Dyson LJ was binding (as the main reasoning or ‘ratio’ of the case) or not (because it amounted to comment, or ‘obiter’), the court followed Leggatt LJ in R (Youngsam) v Parole Board [2019] EWCA Civ 229 to the effect that ‘the ratio is … part of the best or preferred justification for the conclusion reached’. The passages contained at [9] and [10] at Halsey (quoted in part above, and relied on at first instance) were not a necessary part of the reasoning that led to the decision in the case, and so were not part of the ratio decidendi (i.e. were not binding) (Vos MR at [19]–[21]).
• Having reviewed international (ECtHR and CJEU) and domestic cases on the constitutional right of access to the court, Vos MR concluded that the power does exist to stay proceedings for or order the parties to attend in a non-court-based dispute resolution process.
• However, that power must be exercised in such a way that does not impair a claimant’s article 6 right, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
• However, Vos MR declines to lay down fixed principles as to what will be relevant in determining the question of any stay, although setting out between [61]–[63] factors that might be relevant. And:
• Vos MR concludes by singing the praises of NCDR: ‘Even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court-based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method … is a matter of the court’s discretion, to which many factors will be relevant’; [59].

Griffiths: Headline point: Procedural fairness may require that any criticism of an expert is put to that expert in cross-examination

How exactly does a modest multitrack claim (£29,000 sought for pain, suffering and loss of amenity relating to a package holiday) end up, seven years after issue (August 2017) and over four years after the original trial (June 2019), in the Supreme Court?

The answer lies in the court’s treatment of the claimant's expert evidence. Both parties were given permission to rely on expert evidence from a gastroenterologist and a microbiologist. The claimant produced and relied upon a short report from one Professor Pennington; for various reasons, the defendant did not call their own expert evidence, but had put clarification questions to Professor Pennington which the expert had answered. The defendants did not require the expert to attend court to be cross-examined, but their counsel impugned its reliability in submissions.

At first instance, the trial judge (HHJ Truman) found that the claimant had been a truthful witness but found that the report of the expert (who was not called) wanting, as they had not provided the court with sufficient information to discharge the burden of proof in relation to causation.

Appeal to High Court and Court of Appeal

The claimant appealed successfully to the High Court, raising the fundamental question of how the court should approach uncontroverted expert evidence. Martin Spencer J allowed the appeal – [2020] EWHC 2268 – holding that Professor Pennington had in fact substantially complied with the CPR Practice Direction on experts and that his report should not have been dismissed as ‘ipse dixit’ (i.e. containing assertions without proof). TUI then appealed to the Court of Appeal – [2021] EWCA Civ 1442 – who were split as follows:

• In the majority, Asplin LJ overruled Martin Spencer J and concluded that there is no strict rule that prevents the court from considering the content of an expert’s report where it is uncontroverted (i.e. challenged by contradictory evidence and where there has been no cross-examination). Nugee LJ held that the trial judge should evaluate all of the evidence including any uncontroverted expert evidence and decide what weight to attach to it.
• In the minority, Bean LJ referred to the ‘trite’ rule that a party is required to challenge in cross-examination the evidence of any party if he wants to submit that the evidence should not be accepted.

Permission was then granted for an appeal to the Supreme Court, to consider what is the scope of the rule that a party should challenge by cross-examination evidence that it wishes to impugn in its submissions at the end of the trial?

Outcome in Griffiths

The Supreme Court allowed Mr Griffiths’ appeal and concluded that it was not fair for TUI to advance the detailed criticisms of Professor Pennington's report in its submissions and without having the expert called to give evidence. Speaking for the court, Lord Hodge concluded as follows:

(1) General principle in relation to expert evidence

‘[36] … as a general rule, the judge has the task of assessing the evidence of an expert for its adequacy and persuasiveness. But it is trite law that English law operates an adversarial system, and the parties frame the issues for the judge to decide in their pleadings and their conduct in the trial. It is also trite law that, in that context, it is an important part of a judge’s role to make sure that the proceedings are fair. At the heart of this appeal lies the question of the requirements of a fair trial’

(2) The need for an expert report to set out its reasoning

‘[37] an expert’s task is to assist the judge in matters outside the judge’s expertise, and it is the judge’s role to decide the case, the quality of an expert’s reasoning is of prime importance. This court gave guidance on the role of the expert in Kennedy v Cordia [2016] UKSC 6, in which, in the judgment of Lord Reed and Lord Hodge with whom the other Justices agreed, it was stated:

“48. An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or ‘bare ipse dixit’ carries little weight… If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless… As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: ‘As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.’”

[39] Martin Spencer J opined that the minimum standards for an expert report were to be found in CPR PD 35. He suggested that that practice direction and the law did not require an expert to set out his or her reasoning. I respectfully disagree…’

(3) The nature of the court’s investigation (in civil proceedings)

‘[41] … In an adversarial system, subject to the constraints of case management, the parties frame the issues which the court is to determine; it is not normally part of the court’s business to investigate admitted facts: Akhtar v Boland [2014] EWCA Civ 872; [2015] 1 All ER 664, para 16 per Sir Stanley Burnton. The trial judge’s role is normally limited to determining the disputed issues which the parties present and to determining those issues based on the evidence which the parties adduce. The trial judge does justice between the parties in so doing.’

(4) Can you impugn a witness (including an expert) without having tested their evidence cross-examination?

In other words, to what extend does the rule in Browne v Dunn (1893) 6 R 67 still apply, i.e. that where a party impugns a witness's account of events, that must be put to the witness in cross-examination. The scope of this rule has exercised the higher courts in earlier cases such as Chen v Ng [2017] UKPC 27 (Privy Council), although it has only been considered in a family case in the mountainous principality of Court 50, where Mr Justice Mostyn considered it in AO v LA [2023] EWHC 83 (Fam) at [63]–[65] (also see Sait v GMC [2018] EWHC 3160 (Admin) at [41]–[56].

After conducting an exhaustive survey of the authorities (which this blog cannot do justice to) Lord Hodge concludes as follows:

‘[61] … there is a long-established rule as stated in Phipson at para 12.12 with which practising barristers would be familiar, as Bean LJ suggested in para 87 of his judgment. There are also circumstances in which the rule may not apply. Several come to mind …

[70]. In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

(i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

(ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

(iii) The rationale of the rule, i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.

(v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

(vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.

(viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.’

Conclusion

So, what does this all have to do with family lawyers?

On one hand, as we are often reminded, family law is not a desert island and general principles of law should be applied in the Family Division as in other Divisions of the High Court. On the other, there are obvious differences between family procedure and civil procedure – perhaps most obviously, the court's function in financial remedies is quasi-inquisitorial, whereby sometimes it has to explore issues in the overall objective of a fair outcome, even where those points have not been advanced by either side. As Ryder LJ commented in Re BM [2021] EWCA Civ 1371 at [23], care should be exercised before ‘harvesting obiter dicta expressed in one context and seeking to transplant them into another’.

My tentative conclusions are as follows: Churchill is an important milestone in the development of ADR (or, for those who take umbrage at the word ‘alternative’, NCDR or non-court-dispute resolution). While applications to stay are rare in financial remedies, they are commonplace in TLATA and there are likely to be cases where a defendant is able to compel a stay for mediation or ENE even where the claimant's position is that this will only lead to delay.

It will probably take some time to absorb the full impact of the judgment Griffiths, which is a tour de force, dealing with some fundamental questions about how a case should be heard.

It will be interesting to see how it impacts in family work, where the court almost invariably directs that there should be a single joint expert. As a matter of procedural fairness, one cannot impugn an expert's opinion without giving the expert notice of you intention to argue that the opinion should be rejected. That does not have to be put to the expert in cross-examination although it might be wise to do so in most cases. In contrast, where there is a dispute of concrete fact about a key issue in the case, the asserted fact has to be put squarely to the actor disputing it in cross-examination.

While there will be cases where the court may feel that criticisms do not require a SJE to be called (because the point is self-evident, such as a mathematical miscalculation, or where the point has been fully covered in clarification questions), there will be cases where advocates will need to reflect carefully on Griffiths, to consider if the fair conduct of a hearing will require an expert (or a witness more generally) being called to give evidence, as opposed to points being taken in written and oral submissions.