Following on from the Supreme Court decision on 29th November in the case of TUI UK v Griffiths the District Judge bench has given a signal that Griffiths may have altered the landscape as to the nature and extent of questions of experts under CPR 35.
David Calvert represented TUI (Cain and others v TUI) in a hearing before District Judge Isles in Manchester County Court on Friday 1st December – 2 days after the Griffiths decision. He was defending the Claimant`s application to restrict and/or disallow several Part 35 questions asked by TUI of the Claimant's expert. Although the expert had already answered the questions before the application was heard, the judge felt (considering paragraphs 71 and 81 of Griffiths) that Part 35 questions could arguably go beyond merely clarifying an experts report and that a Defendant now may wish (and be permitted) to be more robust in the questioning of an expert to properly challenge that expert’s opinion.
Although the judge’s indication to the parties was not part of her judgment the Claimant did abandon this limb of the application and the Part 35 answers remained.
It will be interesting to see how Griffiths is dealt with in the future by the District Bench but if a Defendant is to avoid calling an expert to be cross examined it does appear that questions will need to be focused, robust and clearly put a questioning party`s case.
David Calvert is an expert in holiday sickness and accidents abroad cases brought against travel companies. He regularly represents TUI and other package holiday firms in courts throughout England and Wales.