INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW causation (‘qualitative claims’). In this case, the Defendant’s failure to challenge the expert evidence by way of its own expert evidence or by way of cross examination enabled the Claimant to succeed in his claim notwithstanding the brevity of Professor Pennington’s report, and the criticisms made of it by the trial judge: “It may be that, had the Defendant served controverting evidence, Professor Pennington would have expanded upon his reasoning, for example in a meeting of experts, and such reasoning would have found its way into a joint statement. As it turned out, that step never became necessary because the evidence of Professor Pennington stood alone. Nor did the Defendant seek to challenge the reasoning that might have lain behind Professor Pennington’s conclusions by calling for him to be cross-examined, as it had every right to do. In those circumstances, the court must assume that there is some reasoning which lies behind the conclusion which has been reached and summarised, and that this reasoning is not challenged.” The Defendant duly appealed this decision to the Court of Appeal, where it succeeded, albeit only on a 2:1 split between the appeal judges. The Claimant appealed again to the Supreme Court, the court of last resort, where five of the most senior judges in the UK agreed unanimously to allow his appeal and found for him. The Decision of the Supreme Court The Supreme Court set out its reasons for allowing the appeal at paragraph 70 of its judgment: “(i) The general rule in civil cases…is that a party is required to challenge by crossexamination 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, ie 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.
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