KA-2024-BHM-000008 - [2025] EWHC 2093 (KB)

The grounds of appeal

I will deal in detail with the grounds of appeal advanced by Mr Pennock later in this judgment. In short, however, he submitted that the judgment should be set aside because, in a number of respects, the judge misstated, misunderstood, or misremembered the evidence, he failed to give adequate weight to key parts of the evidence, and/or he failed deal with relevant matters or to give adequate reasons for the conclusions which he reached. In particular, he submitted that the judge had been wrong to find that:

The fact that the national reference laboratory report had not found a cyclospora oocyte in its test meant that he could not be satisfied, to the civil standard, that the Appellant had ingested cyclospora. The judge found, in effect, that the regional laboratory had been “mistaken” in finding cyclospora oocytes in the Appellant’s stool sample. As a result of this conclusion, the judge proceeded on the basis that the pathogen ingested by the Appellant that caused her illness was not cyclospora, and it must have been another, unidentified, pathogen (“the cyclospora issue”); and

The Appellant had not proved that the pathogen she undoubtedly ingested whilst at the hotel was from the hotel’s food or drink (the Appellant not having consumed food or drink from anywhere else but the hotel). There may have been another cause, for example she could have touched a surface contaminated by an unidentified pathogen and then put her hand in her mouth (“the causation issue”).

As I have indicated, if the judge had found in the Appellant’s favour on the cyclospora issue, then in all likelihood the judge would also have found in the Appellant’s favour on the causation issue and so her claim would have succeeded.

There is no suggestion that the judge misdirected himself in law, or that he misdirected himself about the burden and standard of proof.

On behalf of the Respondent, in excellent submissions, Mr Saxby submitted that there was ample evidence to support the judge’s conclusion on the cyclospora issue, and, in particular, to support the judge’s reliance on Dr Gant’s view that the result of the national reference laboratory was the one to be relied upon. Mr Saxby submitted that Mr Pennock had misunderstood the answers given by Dr Gant at the end of his cross-examination and during his re-examination. Those answers did not amount to a concession that, on the balance of probabilities, the cause of the Appellant’s illness was cyclospora. As a result of his misunderstanding, Mr Saxby said, Mr Pennock had refrained from cross-examining Dr Gant on the causation issue if another pathogen was the cause of the illness. The judge was entitled to accept Dr Gant’s views on this issue, and, Mr Saxby submitted, Mr Pennock is taking points on appeal which he did not deal with by way of cross-examination of Dr Gant. Mr Saxby submitted that Mr Pennock should not be permitted to do so, because a trial is not a dress rehearsal. Mr Saxby further submitted that the judge had given, at the very least, adequate reasons for his decisions on the cyclospora and causation issues.