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Anthony Johnson Successful in Appeal on the Admissibility of Expert Evidence


HHJ Barkley’s judgment in the case of Jones v. TUI has now been handed down

Anthony Johnson (instructed by Carl Jones of Aegis Legal) acted for the successful Claimant in the appellate case of Jones v. TUI; the judgment of HHJ Barkley in the County Court at Winchester was handed down on 08.10.20.

Although the case had initially started life as a low-value holiday sickness claim towards the bottom end of the Fast-Track, the Defendant raised a large number of issues about whether the Claimant’s medico-legal expert actually had the requisite expertise to opine upon the illness that the Claimant had suffered, ultimately applying to Strike Out his evidence on the basis that it was not properly admissible. 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.

At the original hearing of the Application, DJ Ball had accepted Mr. Johnson’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.

HHJ Barkley upheld that decision on appeal, saying that DJ Ball’s decision was ‘admirably succinct and thorough’, and that if deciding the matter afresh he would have reached the same conclusion. He accepted that the ‘modern view; was that questions of this nature go to weight rather than admissibility. He considered that there was nowhere in the authorities that suggested that the test had to be narrowed down to the specificity that had been postulated by the Defendant. He did not accept that DJ Ball had elided the issues of diagnosis and causation. He found that the expert in question “had enough of the relevant knowledge and experience to take him beyond the threshold whereby he can interpret and rely on published medical material to inform his own opinion.”

Issues of the type that have been raised in this appeal are highly topical at present, particularly in the light of the widely reported appeal judgment in Griffiths v. TUI [2020] EWHC 2268, QBD.

The Judgment can be viewed here.

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Anthony Johnson

Call 2006

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