Successful 'Test Case' on admissibility of Expert Evidence in Holiday Illness Claims

Thursday 06th February, 2020

Carl Jones of Aegis Legal Successful in ‘Test Case’ on the Admissibility of Expert Evidence in Holiday Illness Cases  

Carl Jones of Aegis Legal acted for the successful Claimant in Jones v. TUI, judgment in which was handed down in the Portsmouth County Court on 17.01.20. At court, the Claimant was represented by barrister Anthony Johnson of Temple Garden Chambers. 

The Claimant, Mr Gary Jones, suffered severe gastric illness at the RIU Tequila, Playa Car, Mexico in April 2016. His symptoms persisted for around 6 weeks following which, thankfully, he made a full recovery. Mr Jones instructed Aegis Legal to bring a claim against the tour operator, TUI UK Ltd, for breach of the Package Travel, Package Holiday and Package Tour Regulations 1992.  

TUI refused to accept any liability, so Court Proceedings were issued in March 2017 and the matter was originally listed for a trial in January 2018. However, TUI disputed the evidence of the Claimant’s medical expert and insisted that he attend trial and this issue repeatedly set back the trial date. Ultimately, in December 2018, TUI applied to have the expert’s evidence struck out on the basis that it was inadmissable because he lacked the requisite expertise to opine upon the illness that the Claimant had suffered. Amongst the barrage of criticisms levelled at the expert by the Defendant were that the expert had been evasive, that he was not objective, that he had misapplied the ‘balance of probabilities’ test and the fact that he had ‘learned on the job’ by writing medico-legal reports rather than having the requisite prior expertise. 

Aegis Legal robustly defended TUI’s application. The court heard evidence, via witness statements, from Carl Jones of Aegis Legal as well as the medical expert on behalf of the Claimant; and a Partner at global law firm Kennedys Law LLP on behalf of TUI. Carl Jones’s evidence carefully considered the expert’s training and experience and explained why Aegis Legal had considered him an appropriate expert. Anthony Johnson and the barrister instructed by TUI both prepared very detailed written submissions (‘skeleton arguments’). The hearing itself took around 1.5 days, at which Anthony Johnson skillfully argued the Claimant’s case. 

The Judge ultimately accepted the Claimant’s position that issues of the type that had been raised by the Defendant went to the weight that can be attached to an expert’s evidence, rather than it being a question of admissibility. The Judge found that the ‘expert’ could properly be considered to be such based upon his clinical experience and research. His evidence was admissible as it complied with the test set out by the Supreme Court in  Kennedy v. Cordia [2016] UKSC 6. Any issues that the Defendant wished to take with regards to the expert’s methodology could be dealt with by submissions at Trial on the weight that could properly be attached to his evidence.