Hannah Louise Rawson v TUI U.K. Ltd

This a rolled-up hearing of the Appellant’s application for permission to appeal, which took place on the basis that the parties should be prepared to argue the full appeal, if permission is granted. I have, therefore, heard full argument on the appeal, and I indicated that I would give a judgment that will deal with permission to appeal and, if permission is given, will also deal with whether or not the appeal is to be allowed.

The appeal is against a judgment that was handed down orally on 1 March 2024 by HHJ Murdoch, sitting at Leicester County Court, and following a trial that lasted three days, beginning on 13 December 2023. The judge described his judgment as “ex tempore”, though it was delivered over two months after the trial concluded. Counsel were in attendance, via CVP, at the time that the judgment was handed down. The judge has since approved the transcript of the judgment in the papers before me.

The Appellant was represented before me by Mr Ian Pennock of counsel, and the Respondent by Mr Dan Saxby. Both were trial counsel. I am grateful to both counsel for their clear, helpful, and skilful submissions, which were of a high standard.

In his judgment dated 1 March 2024, the judge dismissed the Appellant’s claim against the Respondent. The Appellant, who is a school teacher, had travelled to Mexico in July 2016, with her then partner, for a holiday at an all-inclusive hotel, which had been booked through the Respondent. The hotel was the Rui Vallarta in Nuevo Vallarta, on the Pacific coast of Mexico. She arrived on 8 July 2016 and left on 23 July 2016. At about 5 pm on 11 July, the Appellant fell ill with diarrhoea and vomiting. She continued to feel unwell for the rest of the holiday, though she was able to participate in a number of excursions after she had first felt unwell. She suffered bouts of diarrhoea six or seven times a day for the remainder of her holiday. After the Appellant’s return, she continued to suffer from diarrhoea, and was diagnosed with gastroenteritis. She has since been diagnosed with Post Infective Irritable Bowel Syndrome and has suffered from anxiety, stress and discomfort as a result. It was the Appellant’s case that this resulted from an infection that was caused by a pathogen in contaminated food or drink that she consumed at the hotel. It was her primary case that the cause was a pathogen known as cyclospora. Stool samples were analysed by a regional laboratory and the national reference laboratory in September 2016, some weeks after the Appellant’s return from holiday. The regional laboratory was the local Public Health England Laboratory and the national reference laboratory was the National Parasitology Reference Laboratory. The analysis at the regional laboratory concluded that stool microscopy had identified cyclospora oocytes (eggs) in the Appellant’s stool. The results of further analysis at the different, national reference laboratory, nine days later, did not indicate the presence of cyclospora oocytes. It was the Appellant’s case that the court should conclude, based on the regional laboratory’s results, that her illness was caused by cyclospora. However, she submitted in the alternative that, even if the pathogen concerned was not cyclospora, the court could be satisfied, on a balance of probabilities, that her illness was caused by another pathogen or pathogens that had been consumed in food or drink when staying at the hotel. The Appellant further contended that the food hygiene standards at the hotel were inadequate.

The Respondent submitted at trial that the Appellant could not show that she fell ill whilst on holiday. The Respondent said that there was evidence that she had been suffering from diarrhoea before she left for Mexico. In any event, the Respondent submitted that the evidence, including the test results and the expert evidence, did not establish that the Appellant’s illness was caused by cyclospora. The Respondent further submitted that, whether the illness was caused by cyclospora or by another pathogen, the Appellant could not prove, to the civil standard, that the source of the pathogen was food or drink that the Appellant had consumed at the hotel.

Though in substance a personal injury claim, in strict legal terms this was a claim for breach of contract. It was alleged that the Respondent was in breach of an implied obligation to ensure that the food and drink supplied by the hotel to which the Appellant was sent would be of satisfactory quality and safe for human consumption. This term was implied by section 4(2) of the Supply of Goods and Services Act 1982 and/or section 2 of the Consumer Rights Act 2015. The Appellant also alleged that the Respondent was in breach of a duty to ensure that the hotel would carry out the services supplied to the Appellant under her contract with the Respondent with reasonable care and skill, as implied by common law and/or by section 13 of the 1982 Act and or section 49 of the 2015 Act. The Appellant also contended that, pursuant to regulation 15(1) of the Package Travel Regulations, Package Holidays, and Package Tour Regulations 1992, the Respondent was liable to the Appellant for the proper performance of the obligations under the contract by the hotel. These legal obligations were not disputed by the Respondent. Their existence in foreign package holiday cases was confirmed by the Court of Appeal in Wood v TUI Travel plc t/a First Choice [2017] EWCA Civ 11; [2018] QB 927. The issue for the court was therefore whether the Appellant could prove on the balance of probabilities that she had contracted her illness from a pathogen in food or drink consumed at the hotel, in which case these obligations would have been breached.

I say at the outset that the judge found in his judgment that the Appellant and her partner gave straightforward, honest, evidence, which the judge accepted in its entirety. This is not one of those cases in which a claimant is alleged to have fabricated or exaggerated the symptoms of sickness and diarrhoea that were encountered on holiday.

The issues relating to liability that the judge had to consider were set out by Mr Pennock in his skeleton argument at trial.

The first issue was whether the Appellant suffered from the symptoms that were alleged. There was no dispute on this issue. It was accepted that the Appellant had suffered the symptoms of gastroenteritis that she had described.

The second issue was whether the symptoms had started before the Appellant went on holiday to Mexico, and so could not have been caused by food poisoning at the hotel. The judge accepted the Appellant’s case on this issue. He found that the Appellant is not the sort of person to mislead the court or her GP, or indeed to fly to Mexico when suffering from diarrhoea.

This left the third issue, which is the central one for the purposes of this appeal. This is what it was that caused the Appellant’s symptoms. The Appellant’s primary case was that the Appellant suffered food poisoning that was caused by cyclospora. Cyclospora is sometimes found in Mexico, and is transmitted via food and drink. On behalf of the Appellant, Mr Pennock stressed that the hotel was an all-inclusive hotel, and the Appellant had not eaten or drunk anything outside the hotel between her arrival in Mexico and falling ill, and so submitted that the only possible conclusion open to the court was that the food poisoning was caused by cyclospora pathogens in food or drink consumed at the hotel. He further submitted that, in any event, the Appellant did not have to identify the actual pathogen that caused her food poisoning, it being sufficient that her symptoms commenced on holiday. This was because she did not consume any food or drink, before her symptoms commenced, other than that provided by the hotel. Therefore, whatever the pathogens concerned, the illness must have come from food or drink that was consumed in the hotel.

This central issue can be subdivided into two subsidiary issues:

Issue (1) was a key issue. Cyclospora is a pathogen that is found in some locations in Mexico but is rarely, if ever, found in the UK. Therefore, if the court was satisfied that the pathogen that caused the Appellant’s illness was cyclospora, that would put paid to the Respondent’s contention that the Appellant was suffering from the illness before she left the UK. More significantly still, cyclospora is a food-borne pathogen. Mr Saxby, counsel for the Respondent, accepted in argument before me that if the judge had found that the pathogen which had caused the Appellant’s illness was cyclospora, then it would have been highly likely that the judge would have gone on to find, on the balance of probabilities, that the cyclospora which infected the Appellant had been contained in food that she consumed at the hotel, and so it was highly likely that the judge would have found in the Appellant’s favour. It would still have been open for the Respondent to argue, notwithstanding a finding that the pathogen that caused the illness was cyclospora, that the Appellant had not ingested the cyclospora in food at the hotel in Neuva Vallarta, but the forensic reality was that the judge would find that she had done so.

As for (2), as I have said, the Appellant’s case did not depend entirely upon a finding that she had been infected by cyclospora. She contended that, if not cyclospora, some other pathogen or pathogens in the hotel food and drink must have been the cause of her illness. Therefore, a finding that the Appellant had been unable to prove that the pathogen in question was cyclospora was not fatal to her claim. However, as I have said, a finding that the Appellant had been infected by cyclospora, rather than another pathogen, would greatly have assisted her case. Regardless of whether the cause was cyclospora or another pathogen, however, Mr Pennock submitted to the judge that the possibility that the Appellant had been infected with food poisoning or some other illness before she departed for Mexico could be, and in the event was, excluded. Mr Pennock pointed to the fact that the Appellant had been staying in an all-inclusive hotel and so had been living in what is sometimes described as a “closed system”. There was, he submitted, in reality no other candidate for the cause of the Appellant’s illness, apart from the food and drink supplied by the hotel. The Appellant also relied on evidence that was said to show that the hotel’s food hygiene standards were sub-optimal, and that there had been recorded outbreaks of food poisoning at the hotel in other months in 2016. It was true that there had been no other recorded episodes of food poisoning at the hotel in July 2016, but there were records of undiagnosed illness (diarrhoea and vomiting) at the hotel in other months in Summer 2016, and Mr Pennock submitted that there was evidence that the hotel’s record-keeping was incomplete.

At trial, the court heard from four expert witnesses. These were two gastroenterologists, Dr Bowling for the Appellant, and Professor Bjarnason for the Respondent, and two microbiologists, Professor Threlfall for the Appellant, and Dr Gant, for the Respondent.

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:

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.

This appeal encompasses challenges to the findings of fact and evaluations based on the findings of fact made by the judge, challenges to the evaluation of expert evidence, and challenges to the adequacy of the reasons given by the judge in the judgment for the conclusions that he reached.

The relevant principles are set out in the judgment of Coulson LJ in Wheeldon Bros Waste Ltd v Millenium Insurance Co Ltd [2018] EWCA Civ 2403; [2019] 4 WLR 56, at paragraphs 7-10:

“The general approach of an appellate court to appeals on questions of fact was memorably summarised by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26. In para 114, he said:

“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1, Piglowska v Piglowski [1999] 1 WLR 1360, Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, In re B (A Child) (Care Proceedings: Threshold Criteria [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include:

“(i)

The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

“(ii)

The trial is not a dress rehearsal. It is the first and last night of the show.

“(iii)

Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

“(iv)

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

“(v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

“(vi)

Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”

8 Shortly thereafter, in Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600, Lord Reed JSC said, at para 67:

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

9 Although I was referred to a number of other cases dealing with the proper approach of an appellate court to appeals based on matters of fact, the only other authority to which reference should be made is Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94. Longmore LJ said, at paras 39–40:

“39.

The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 and McGraddie v McGraddie [2013] 1 WLR 2477 the laer of which cited with approval Hamilton v Allied Domecq plc [2006] SC 221, para 85. In the latter case it was said: ‘If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance.’ … We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 …

“40.

There will be (and have been) rare cases where an appellate court is compelled to set aside findings of fact made by an experienced trial judge but we are far from convinced that that is the case here. None of the challenged findings can be said to be unsupported by the evidence and the decision is certainly not one that no reasonable judge could have reached. The case was not an easy one for the judge but he grappled with all the potential difficulties of the evidence and came to a conclusion which, we feel able to say (although our own opinion is immaterial) was probably correct.”

10 In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding.”

(2)

Appeals on matters expert evidence

The relevant principles are also very helpfully set out in the Wheeldon case, at paragraph 11:

“11 A first instance judge’s assessment of, or evaluations based upon, expert evidence adduced at trial must be approached by an appellate court with similar caution. Whilst it has been said that a reconsideration of an expert’s opinion may be slightly easier than a finding of fact, because the underlying report will be in writing (see Thomson v Christie Manson & Woods Ltd [2005] EWCA Civ 555; [2005] PNLR 38), the same case also provides a salutary warning that, since the evaluation of expert evidence is likely to be bound up with a wider evaluation of matters of fact, an appellate court will still be very slow to intervene. At para 141 of his judgement in Thomson’s case, May LJ said:

“But, even accepting that individual points such as these are amenable to judicial appellate evaluation whatever the expert opinion, no appellate court should cherry pick a few such points so as to disagree with a composite first instance decision which, in the nature of a jig-saw, depended on the interlocking of a very large number of individual pieces, each the subject of oral expert evidence which the appellate court has not heard.”

In the paragraph of the court’s judgment in the Thomson case which is referred to in Wheeldon, May LJ also said the following:

“It is a commonplace that this court will only rarely disturb a judge’s finding of fact reached after hearing oral evidence whose credibility is in issue. It may sometimes be somewhat less difficult to depart from an evaluative judgment of expert evidence, if the evidence is mainly in writing and its evaluation an intellectual process largely unaffected by personal credibility. But that is not this case…..[The judge’s] conclusions are in each instance supported by credible evidence. The existence of other evidence does not render these judgments wrong nor does it persuade me that he should have reached an opposite conclusion. ….Restating evidence and submissions which the judge rejected does not persuade me that the judge was wrong, when the judge’s conclusions were supported, as they were, by the opinions of Christie’s experts.”

Wheeldon, and the authorities referred to therein, make clear that an appellant has a high hurdle if he or she wishes to persuade an appellate judge that the trial judge was not entitled to come to the conclusion that he or she came to on matters of fact and expert evidence, including evaluations and conclusions based on that evidence.

There has been a very recent Court of Appeal case about adequacy of reasons. The case is Glas SAS (London Branch) v European Topsoho SARL [2025] EWCA Civ 933. Judgment was handed down on 24 July 2025, less than a week before the hearing of this appeal. This was an appeal against a ruling on a short application in the Friday Commercial Court list, but the points made by Falk LJ, who gave the lead judgment, apply equally to appeals in cases such as this.

The Court of Appeal in the Glas SAS case did not set out any new principles. Rather, the Court restated and applied principles that are well-established and have been set out in the leading authorities such as English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605; [2002] 1 WLR 2409 at paragraphs 15-21, and Simetra Global Assets v Ikon Finance Ltd [2019] EWCA Civ 1413; [2019] 4 WLR 112 at paragraph 46. In Glas SAS, Falk LJ helpfully summarised the relevant principles at paragraph 32 of her judgment.

As Falk LJ pointed out, in Simetra, Males LJ gave guidance in the context of a challenge based on inadequately reasoned findings of fact. He said:

“46.

Without attempting to be comprehensive or prescriptive, not least because it has been said many times that what is required will depend on the nature of the case and that no universal template is possible, I would make four points which appear from the authorities and which are particularly relevant in this case. First, succinctness is as desirable in a judgment as it is in counsel’s submissions, but short judgments must be careful judgments. Second, it is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment. Third, the best way to demonstrate the exercise of the necessary care is to make use of ‘the building blocks of the reasoned judicial process’ by identifying the issues which need to be decided, marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues, and giving reasons why the principally relevant evidence is either accepted or rejected as unreliable. Fourth, and in particular, fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.”

In Glas SAS itself, Falk LJ said, at paragraph 29:

“… there is a minimum level of reasoning that is required. The critical elements of the judge’s decision-making must be recorded, such that the parties understand why the decision was reached. I would add to this that, for obvious reasons, it is usually especially important that the losing party understands why their case was not accepted. Further, the judge should bear in mind that a judgment must be understandable not just to the parties but to an appeal court. The reasons must be “sufficiently apparent to enable the appeal court to uphold the judgment”: English v Emery at [18].”

Falk LJ also pointed out, at paragraph 26 of her judgment:

“In English v Emery the court also recommended at [25] that, where there is a challenge based on an inadequacy of reasoning, the judge should be given an opportunity to provide additional reasons. That was reiterated by Munby LJ in Re A (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595 at [16], where he said that it was the responsibility of the advocate to draw the judge’s attention to any material omission from the judgment, including any perceived lack of reasons.”

That course of action was not followed in the Glas SAS case. At paragraph 32e, Falk LJ said:

“Importantly, counsel should immediately point out if they consider that reasoning is inadequate. It is regrettable that this was not done in this case. A failure to do so cannot prevent an appeal being made, but it is conduct that might be taken into account by the appellate court in determining the appropriate order for costs, since raising the issue might have resulted in an unnecessary appeal being avoided.”

(4)

The obligation to deal with a point in cross-examination if a party wishes to rely upon it

This is dealt with by the Supreme Court in the recent case of Griffiths v Tui (UK) Ltd [2023] UKSC 48; [2023] 3 WLR 1204 Lord Hodge DPSC said, at paragraph 70:

“In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

(i)

The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination 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, i e preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

….

(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.

(vi)

Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii)

The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12-12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule….”

(5)

Permission to appeal

CPR r52.6(1) provides that permission to appeal may be given only where: (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard. In Gray v Global Energy Horizons Corp [2020] EWCA Civ 1668; 2021 1 WLR 2264, at paragraph 492, the Court of Appeal said, as one would expect, that the approach to be taken by a court in determining whether to grant permission to appeal on issues of fact should be guided by the principles applicable to an appellate court that is determining the appeal on this basis.

In light of the nature of this appeal, it is necessary to set out the judge’s review of the evidence and his conclusions in some detail.

I will deal separately with the findings and reasoning of the judge as regards the cyclospora issue and the causation issue. As I have said, the judge found that the Appellant and her former partner gave straightforward, honest, evidence. The judge accepted that the Appellant had not been ill before she went to Mexico. The court also heard from the general manager of the hotel, Mr Gutierrez, who also gave straightforward evidence. Mr Gutierrez tried his best to help the court but had not been working at the hotel at the time when the Appellant fell ill. In fact, Mr Gutierrez did not enter employment with the hotel until 2020, some four years after the Appellant fell ill there.

The Appellant fell ill on 11 July, three days into her holiday, at about 5 pm. She had explosive diarrhoea, which lasted all night, and she began to vomit. She had a raised temperature. Though she was able to go on some excursions, which she only did because she felt guilty about her partner, the Appellant suffered diarrhoea six or seven times a day whilst in Mexico.

I refer below, when dealing with the causation issue, to the evidence about what the Appellant did on her holiday.

On 6 September 2016, the Appellant presented at her GP with a history of diarrhoea. On 7 September a regional laboratory reported a finding of cyclospora oocytes in her stool sample. Seven days later, the national reference laboratory (at the National Hospital for Tropical Diseases) carried out a second test. No cyclospora oocytes were found, and the national reference laboratory concluded therefore that cyclospora was not present in the stool sample.

Dr Bowling, the Appellant’s expert gastroenterologist, said:

“Stool samples in the UK identified cyclospora. Given this result, it is highly unlikely that the claimant’s gastroenteritis was caused by an unrelated pathogen. On the balance of probabilities, the enteritis was caused by cyclospora.”

Though Dr Bowling took the view that on the balance of probabilities the Appellant’s illness was caused by cyclospora acquired in Mexico, he deferred entirely to the microbiologists. Dr Bowling was unable to assist with when it is that patients present with symptoms of cyclospora as very few people present with cyclospora in clinic. The relevance of this last observation was that it had been contended by the Respondent that most people who ingest cyclospora do not show symptoms until a number of days afterwards. The Appellant had first shown symptoms on her third day in Mexico.

Professor Bjarnason, the Respondent’s expert gastroenterologist, said, “It is impossible to be dogmatic about the precise cause of this case.” Professor Bjarnason said,

“We agree many aspects of this illness are described (inaudible) Ms Rawson to cyclospora that she acquired the infection on the balance of probability in Mexico during the holiday and that she has developed IBS.” [My guess is that the missing word is something like “link”]

Professor Bjarnason pointed out that the symptoms appeared three days after the Appellant’s arrival and said that very few patients indeed would be symptomatic of cyclospora infection within three days of arrival. He said that it was possible that the Appellant’s original symptoms on 11 July were caused by any of the other 30 or so enteropathogens that cause travellers’ diarrhoea.

Professor Bjarnason said that in his first report he had accepted the presence of cyclospora in the stool sample, but that he must have missed the second laboratory report, because, if he had read it, he would not have accepted the presence of cyclospora.

The joint statement of the gastroenterologists said that it was agreed that stool microscopy described cyclospora oocysts (i.e oocytes) in the Appellant’s stool, though it was noted that the stool sample was submitted six weeks after the Appellant’s return from Mexico.

Professor Threlfall, the Appellant’s microbiology expert, said that, on the balance of probabilities, he considered it extremely likely that the microbiological cause of the Appellant’s illness was an infection of cyclospora, which was contracted whilst she was a guest at the hotel, and within 48 hours of arrival.

Professor Threlfall addressed the fact that the regional laboratory had recorded cyclospora oocytes in the Appellant’s stool sample, but the national reference laboratory did not. He said:

“The sample tested by the reference laboratory was reported as normal, no action. It should be realised that testing for cyclospora is notoriously difficult. At the time of the claimant’s illness, the most common method for testing for the presence of cyclospora was concentrate microscopy, where the presence of only a small number of oocytes or even a single oocyte is regarded as indicative of cyclosporiasis [the disease caused by cyclospora]. The test undertaken by the reference laboratory and referred to by the solicitors for the defendant were similarly concentrate microscopy. Thus, a negative result as recorded by the reference laboratory is not necessarily absolutely confirmatory evidence of what has been described as a false positive.”

Professor Threlfall suggested that the second sample, seen by the national reference laboratory, could have deteriorated over the seven days [in fact it was nine days] between the regional test and the national test.

Dr Gant, the Respondent’s microbiology expert, was the Clinical Director for Infection at the Hospital For Tropical Diseases at UCLH NHS Foundation Trust. This is the UK’s specialty referral hospital for infectious diseases acquired abroad. The Hospital For Tropical Diseases contains the national reference laboratory to which the Appellant’s stool sample was taken. He did not agree that the evidence showed that the Appellant had been infected by cyclospora. He dealt in his report with the fact that the regional laboratory had recorded cyclospora oocytes in the Appellant’s stool samples, and the national reference laboratory had not, as follows:

“Because laboratory technicians around the UK are not highly experienced in detecting cyclospora, UK public health authorities have designated a national reference laboratory in each country. The National Reference Laboratory for England is the Hospital for Tropical Diseases, where staff have specific experience and training in identifying the organism. The stool sample provided by the claimant was, on the balance of probabilities, one of those false positives; the local lab thought they had seen it but the more experienced lab did not identify cyclospora.”

Dr Gant did not agree that the sample would have deteriorated and become free of cyclospora oocytes between the first test and the second. He said:

“This is speculative and highly unlikely from a biological perspective, as oocytes will remain detectable in a stool sample for extended periods of time, far exceeding the time elapsed in confirmatory testing by the reference laboratory.”

Dr Threlfall said in evidence that the regional laboratory would test for oocytes via concentrated microscopy, whereas the national reference laboratory would use an extenuated stain system. He accepted that the national reference laboratory was the gold standard. Dr Threlfall said that he would defer to Dr Gant’s testing experience. Dr Threlfall also accepted that there were no academic papers to support the theory that a stool sample could degrade, in the sense that cyclospora oocytes which were previously there would disappear, in seven days.

The judge said that, in his evidence, Dr Gant said that there were no antibodies for the cyclospora, and that the fluorescing was naturally occurring and not relied upon antibodies to do so. He said that the national reference laboratory is the gold standard for the test of this type, and agreed in cross-examination that the regional laboratory was justified in treating the test results as a probable cause of cyclospora and that the NHS were right to likewise treat it as a probable cause of cyclospora. At the very end of his cross examination, when being pressed as regards whether cyclospora was the probable cause, Dr Gant said:

“So it’s epidemiological, it’s to do with pragmatism, limited resources, and it allows for definition to be put in place, and it’s probable and you’re right that’s how it is. So for the court that is what the particular specimen or this particular case might be described as.”

In re-examination, however, the judge said that Dr Gant clarified that last remark and he said that what he was saying was that on the papers there was a probable finding of cyclospora oocytes, but not once a full examination of all the features of the case were taken into account.

I interrupt my review of the judge’s findings to say that I will return to what was said by Dr Gant on this issue in cross-examination and in re-examination, because it was a central plank of Mr Pennock’s submissions that Dr Gant had conceded in cross-examination that the court should proceed on the basis that the probable cause of the Appellant’s illness was cyclospora, and so the Respondent’s own microbiology expert had conceded that, on the balance of probabilities, the cause was cyclospora. That was why Mr Pennock had stopped his cross-examination there: he took the view that the case was effectively won, as the Respondent’s key witness had accepted that the cause was cyclospora, and such a finding meant that, in reality, the causation issue would also be resolved in the Appellant’s favour. Mr Pennock further submitted to me that, properly understood, the answers given by Dr Gant in re-examination did not resile from this concession. Mr Saxby submitted that this was a misinterpretation of Dr Gant’s evidence. I will deal with these submissions when I deal in turn with the grounds of appeal.

The judge preferred Dr Bowling’s evidence to that of Professor Bjarnason, because the judge took the view that Professor Bjarnason had a tendency to express views on matters that were outside his area of expertise. The judge accepted Dr Bowling’s view that, if the Appellant had a cyclospora infection, she was and remained symptomatic. However, the gastroenterologists deferred to the microbiologists on the cyclospora issue, and so the views of the gastroenterologists did not determine the cyclospora issue (or the causation issue).

The judge preferred the evidence of Dr Gant to that of Professor Threlfall. He observed that Professor Threlfall accepted that Dr Gant has greater experience for testing for cyclospora oocytes. Dr Gant’s laboratory (the national reference laboratory) has the expertise and Professor Threlfall’s does not. Dr Gant’s evidence on the testing process was more cogent. He was right, and Professor Threlfall, was wrong, when Dr Gant said that there was no antibody for the oocytes and that they fluoresced naturally, and Professor Threlfall said that there was an antibody, and also when Dr Grant said that the oocytes did not deteriorate rapidly over time, and Professor Threlfall said that they did. Professor Threlfall’s suggested explanation for the different results, that the oocytes had disappeared from the stool sample between tests, was therefore not accepted. Both microbiology experts made clear that the identification of cyclospora oocytes was not easy, and they could readily be confused with other pathogens, such as yeast. The purpose of the national reference laboratory was to check that the initial findings of the regional laboratory were correct, and they had done their job and had concluded that they were not correct.

The judge said that he would have required extremely cogent evidence to persuade him that the national reference laboratory had got it wrong, and there was no such evidence.

For these reasons, the judge found on the balance on probabilities that the Appellant did not have cyclospora in her stool sample and so there was no direct evidence of the presence of cyclospora. The judge concluded that the Appellant’s symptoms were caused by another pathogen.

As I have already said, though a finding that the pathogen that had been ingested by the Appellant was cyclospora would almost certainly have resulted in victory for the Appellant in these proceedings, a finding that the Appellant’s symptoms were caused by another pathogen was not fatal to her claim. It was still open to her to persuade the judge, on the balance of probabilities, that the other pathogen had been ingested from food and drink that she consumed at the hotel (especially as the judge found that the Appellant had not fallen ill before she went to Mexico).

The judge’s findings about the hotel, and about what the Appellant did whilst she was there

I have already referred to the symptoms suffered by the Appellant.

The Rui Vallarta hotel is a big and busy hotel (in fact, though the judge did not give the figure, it was not in dispute that it had 678 rooms). It serves about 1,200 guests per day and had a 95% occupancy rate. There are four restaurants, two buffet-style and two a la carte. A large quantity of food and drink is provided both to all-inclusive residents and to non-residents.

The Appellant arrived at the hotel at about 4.30 pm on 8 July 2016. It was an all-inclusive holiday. The judge found that the Appellant fell ill at about 5pm on 11 July 2016, and so about three days into her holiday. She had eaten a buffet meal on the evening of 8 July, and breakfast in the buffet the following morning, consisting of a boiled egg, toast and tea. For lunch, she had a buffet meal in the beach restaurant café, and that evening she had a well-done steak in the beef restaurant. The buffets were standard buffet meals, with the guests helping themselves as they wished to food that was put out for them. Nothing was cooked to order or in front of the Appellant. Birds would try to take food left by guests on tables, or scraps of food that had been dropped. But birds were not seen on the buffet itself.

The Appellant used the swimming pool one day, swimming with her head and hair out of the water. She also waded into the sea up to her knees, but no further.

After she fell ill on 11 July, the Appellant did not leave her room on 12 July. The Appellant was able to participate in a number of excursions whilst on holiday, after she had first fallen ill. On 13 July, the Appellant went on a 4-hour excursion to a local village. On 16 July, the Appellant went on another excursion, a six hour round trip. She was able to swim to a small pontoon off the shore. On 19 July, the Appellant went to a dolphinarium. She went into the water but steered clear of the dolphins, as she was scared of them. That trip lasted 3 hours.

The judge said that the Appellant made no complaints about food hygiene in resort or in her initial complaint.

As regards causation, Dr Bowling, the Appellant’s gastroenterologist, who had previously concluded that the enteritis was caused by cyclospora, said:

“Infection is transmitted through consumption of food or water and is contaminated by cyclospora. Food often implicated in outbreaks include soft fruit like raspberries and salad products. The incubation period is 2 to 14 days. Given that the claimant consumed no food in Mexico other than the hotel and she will not have acquired this infection in the UK or on the flight, it is reasonable to conclude on the balance of probabilities the infection was acquired at the hotel. There has been comment on poor food hygiene. Clearly, this is a subjective opinion that cannot be verified, but may be of relevance.”

However, in answer to Part 35 questions about causation, Dr Bowling deferred to the microbiologists. He readily accepted in evidence that that the question of causation rested with the microbiologists, as did the question of whether there would be an outbreak of gastroenteritis amongst more guests if a closed system broke down.

The Respondent’s gastroenterologist, Professor Bjarnason, proceeded on the basis, contrary to what was found by the judge, that there was evidence that the Appellant had been unwell before she left for Mexico. He said:

“The presence of cyclospora in the stool is accepted but if she was symptomatic before travelling it is difficult to establish the time of acquisition of cyclospora infection in Mexico, it is entirely possible, if not probable, that she acquired it under these circumstances during her numerous excursions rather than at the all-inclusive resort.”

“On the other hand, if the court concludes that she did not have gastroenteritis and accepts her account of events, the possibility that cyclospora caused the symptoms on her third full day of holiday, this would not be impossible from consideration of incubation times, the range being two to 14 days, but unlikely from considering of the median incubation time, seven days. It seems there is less than a five per cent chance of cyclospora causing symptoms two to three days from exposure.”

Professor Bjarnason was sceptical that, even if the cyclospora was acquired in Mexico, it was acquired in the hotel. He said:

“Deciding the most likely mode of acquisition is shrouded with problems …. The preferential mode of acquisition in rural Mexico mostly involves and association with contamination water, but this may not apply to all-inclusive resorts….Collectively this would make it difficult to conclude the hotel served its citizens food contaminated by cyclospora. There are numerous other modes of acquisition.”

Professor Bjarnason accepted that the Appellant had developed gastroenteritis in Mexico and probably from within the premises. He said that it could be from food, water, touch, aerosols, or any one of the 30 pathogens that he said are touched upon in its report.

The Appellant’s microbiology expert, Professor Threlfall, said that isolation or identification of a pathogenic organism in suspect foods at the time of the individual’s illness is essential for definitive confirmation of the source and vehicle of infection. In other words, you can only be sure of the cause of pathogenic infection if you can isolate the food or drink etc which was the vector for the infection. That was not possible in the Appellant’s case. Professor Threlfall went on to say:

“Without this information, diagnosis of the putative vehicle of the infection has to be based on a probability assessment, based on the person’s history of consumption of foods and beverages before becoming unwell, together with their activity history and scrutiny of relevant hotel records, assuming these are made available, supplemented by knowledge of pathogenic microorganisms in the immediate vicinity.”

Professor Threlfall said that, on the balance of probabilities he considered it extremely likely that an item of food or beverage provided by and consumed in the hotel which was contaminated with cyclospora was responsible for the Appellant’s illness. Professor Threlfall did not consider it likely that the Appellant would have become infected with cyclospora during an excursion. He said:

“Although she did attend four excursions after this time, she was unwell, throughout and could not enjoy these events. Although there is a possibility she contracted her infection during these excursions and not as a result of food prior to these events, on the balance of probabilities I consider this to be extremely unlikely.”

Professor Threlfall said that this was because the Appellant was already unwell before she embarked upon the excursions.

Professor Threlfall accepted in cross-examination that the fact that the hotel records did not show any other entries of illness in July 2016 was not consistent with breach of a closed system, when considered against 37 such entries in a four-month period. Professor Threlfall said that food and drink is not the only cause of gastric illness, but it is the usual cause. He accepted that there can be other causes, and it was hard to say what caused an individual contamination, as opposed to a widespread contamination, without details of the pathogen. He accepted that, for example, pathogens can be ingested from swimming pool water, and such pathogens can be chlorine-resistant.

As for Dr Gant, the judge reminded himself that Dr Gant took the view that the national reference laboratory’s test of the Appellant’s stool sample, which did not show cyclospora oocytes, was the more reliable. He said that the cause of the Appellant’s illness was unlikely to be a general problem with the food in the absence of a more general outbreak amongst guests. Dr Gant said that all that was needed for a person to suffer gastric illness was the ingestion of a pathogen, and this could happen in various ways. For example, if a person’s hand came into contact with a pathogen and the person’s hand then touched their mouth, they could ingest the pathogen in that manner.

The starting point is that, whilst he accepted that the Appellant fell ill whilst on holiday in Mexico, and that her gastric illness was caused by a pathogen, the judge did not accept that it had been proved that the pathogen was cyclospora. He proceeded to consider causation, therefore, on the basis that the cause was another, unidentified, pathogen.

The judge also proceeded to consider causation on the basis that the two gastroenterology experts deferred to the microbiology experts, Professor Threlfall and Dr Gant, on the issue of causation, as they did on the issue as regards whether the testing had established, on the balance of probabilities, that the pathogen was cyclospora.

The judge accepted Professor Threlfall’s point that it is only possible to be sure of the source of a pathogenic infection if the source, such as food and drink, can be contemporaneously located and then examined. In the absence of such clear proof, one must look to circumstantial evidence to see if the cause could be established on a balance of probabilities.

The judge considered the evidence about the food hygiene procedures operated by the hotel. He accepted that there had been a health and safety audit at the hotel on 29 March 2016, some 14 weeks before the Appellant’s holiday. This audit was conducted by a UK company called Argent, which provides health and safety audits for the hospitality industry. The judge accepted that the audit found that there were a number of failings: the temperature of all chilled and frozen food was not checked upon arrival against specific requirements; there was no documented procedure for defrosting which was maintained at all time; there was no documented procedure to ensure that cooked food was decanted and stored in appropriate storage containers and cooled to less than eight degrees within 90 minutes; hot food was not maintained at a temperature of 63 degrees and above; food temperatures were not monitored; the temperature of hot, held or displayed hot food was not recorded and the records were not made available for inspection; and the temperature of cold food displayed for service was not warranted and the records were not made available for inspection.

On the other hand, the judge observed that all of the other measures on the audit score, approximately 50 in total, were positive and the overall audit score was 4 out of 5.

The judge regarded a more important issue to be that there was no evidence of a more generalised outbreak of food poisoning at the time of the Appellant’s illness, as the judge would have expected there to be, if her illness had been caused by food poisoning. The judge accepted Mr Pennock’s point that the Respondent’s records cannot be complete, because they can only record complaints that are made to the Respondent’s representatives on site, and that the hotel records can only record complaints made to them. Other tour operators used the hotel, and there was no evidence as to whether they recorded any outbreaks during the relevant period. Some people who suffer food poisoning will not make a fuss about it and so it will not come to the attention of the hotel or their tour operator. The very fact that the Appellant’s own illness was not recorded is a clear indication that the records are not entirely reliable, and there will be other cases of illness that was not recorded. (The Appellant had not notified the hotel or the Respondent of her illness whilst she was in Mexico.) Nonetheless, these factors were always present and yet there were records in other months of illness at the hotel, but not such records for the period when the Appellant was at the hotel. There had been complaints of illness to the Respondent’s representatives at the hotel in the period from 1-8 July (this was a typo, in fact the period was 1-8 June), and then again from 8 August onwards, with a peak on 17 August, when six guests complained of gastric illness. The hotel’s doctor did not record any complaints of gastric illness between 14 June and 8 August and then there two peaks later in August which reflected the Respondent’s record.

It follows that holidaymakers did make reports of gastric illness whilst at the hotel in the Summer of 2016, but there were no such reports whilst the Appellant was there. The judge concluded that whilst the records were not 100% accurate, they showed an overall picture, and that picture is that there was no outbreak at the hotel whilst the Appellant was in residence.

The judge said that there was therefore no evidence of a general outbreak of food poisoning at that time. If there had been, that would have been clear evidence of contamination from a single source. In the absence of such evidence, it is much more difficult to identify the source of the Appellant’s infection.

The judge observed that the burden of proof rested with the Appellant. There is nothing in the hygiene records which points to a breakdown in hygiene at the hotel. There are no records of illness amongst other guests which point to a breakdown in hygiene at the hotel.

The judge accepted Dr Gant’s evidence on causation. This was to the effect that, though it was clear that the Appellant had fallen ill through the ingestion of a pathogen, it could have been from any source that the Appellant’s hand had touched, whether that be the swimming pool, the sea, or any of those sources.

Ultimately, the judge decided the case on the burden of proof. He said:

“In my judgment, it is not for the defendant to prove what the source was, it is for the claimant to prove that it is the food and the drink, something that she has consumed, and in my judgment, for the reasons that I have set out in my judgment, the claimant has failed to do so. So, in my judgment, the claim must be dismissed.”

The grounds of appeal, and the oral submissions on behalf of the Appellant

There are 13 grounds of appeal. Several of them contain sub-grounds. One of them, Ground 6, has 11 sub-grounds. A number of them overlap. Mr Pennock developed and supplemented his grounds of appeal in oral argument. The essence of the grounds of appeal are that the judge failed to take account of, and/or failed to give sufficient weight to, and/or failed to give adequate reasons in respect of his findings about, certain aspects of the evidence that were relevant either to the cyclospora issue, or to the causation issue.

I will first set out the grounds of appeal and Mr Pennock’s arguments in relation to the cyclopora issue and I will then consider those grounds. I will then do the same in relation to the causation issue.

It is submitted on behalf of the Appellant that the judge erred in the following respects:

In his oral submissions, Mr Pennock emphasised the following points in relation to the cyclospora issue:

I have carefully considered all of the grounds and submissions that have been advanced on behalf of the Appellant by Mr Pennock. In my judgment, there were ample grounds for the judge’s conclusion that the Appellant’s illness was not caused by the cyclospora pathogen. There was evidence to support the findings made and the conclusions reached by the judge. The judge did not misunderstand the evidence, and the conclusions on the facts and the expert evidence were ones that a reasonable judge could reach. Furthermore, the judge gave more than adequate reasons for this conclusion.

There was no dispute that the regional laboratory recorded that cyclospora oocytes had been found in the Appellant’s stool sample, and the national reference laboratory did not find any cyclospora oocytes in the sample.

There was a dispute in the expert evidence about the conclusions to be drawn from the analyses of the Appellant’s stool samples that were carried out by the regional and the national reference laboratories, and the other evidence. Standing back, and looking at the matter in the round, it came down to which of the microbiology witnesses’ evidence the judge preferred.

The judge was plainly right to focus on the expert evidence of the microbiologists. The gastroenterologist who was instructed on behalf of the Appellant, Dr Bowling, accepted that he had to defer to the expert microbiologists on causation. Causation, for this purpose, included both the identification of the particular pathogen that had caused the illness, and then working out the source of the pathogen. The judge was fully entitled, and, indeed, undoubtedly right, to conclude from this that Dr Bowling could not help on the cyclospora or conclusion issues. The gastroenterologist who was instructed on behalf of the Respondent, Professor Bjarnason, also deferred to the microbiologists on issues of causation. To the extent that he strayed beyond the limits of his specialist expertise, and again quite rightly, the judge discounted his evidence.

This meant that the judge was faced with conflicting evidence from the microbiologists on the cyclospora issue. The Appellant’s expert, Professor Threlfall, held the view that, in light of the result of the tests at the regional laboratory, and notwithstanding the outcome of the tests at the national reference laboratory, it was clear that the Appellant had ingested cyclospora. Conversely, the Respondent’s expert, Dr Gant, held the opposite view: he considered that the court should rely upon the result of the test at the national reference laboratory, even though it contradicted the result at the regional laboratory. Both of the microbiology experts gave reasons for the view in reports, Part 35 Answers, and a joint statement, and their views were tested by cross-examination. The judge decided that he preferred Dr Gant’s view. He gave reasons for this decision, each of which was supported by the evidence:

Dr Gant had greater experience in testing for cyclospora oocytes. This was not in dispute. Professor Threlfall had accepted this. Dr Gant was Director at the National Hospital for Tropical Diseases. The national reference laboratory was based there and Dr Gant had ultimate responsibility for it;

The national reference laboratory had greater experience than the regional laboratories. This was borne out by the evidence. Cyclospora is not endemic or common in the UK and so regional laboratories are not used to testing for it. The national laboratory, on the other hand, is a national reference laboratory for a reason, because those who work there have the greatest experience in testing for what in UK terms are esoteric pathogens. This is why the purpose of the national reference laboratory was to check the initial findings of the regional laboratory. Dr Gant had said that laboratory technicians in the UK generally are not highly experienced whereas staff at the national reference laboratory have specific experience and training in identifying the organism. Professor Threlfall had accepted in evidence that the national reference laboratory testing was the” gold standard”. He also accepted that testing for cyclospora was “notoriously difficult”;

Dr Gant’s evidence on the testing process was more cogent that Professor Threlfall’s. Again, this was a conclusion that the judge could come to on the evidence. The judge accepted, as he was entitled to, Dr Gant’s evidence that there was no antibody for the oocyte, over Professor Threlfall’s evidence that there was such an antibody;

Professor Threlfall’s suggested explanation for why the oocytes had been found in the regional laboratory test, but not, a week or so later, in the national reference laboratory test, was therefore rejected. Professor Threlfall had said that the antibody deteriorated or degraded rapidly over time and so might have disappeared in the week or so between the first test and the second. Dr Gant said that they did not. Dr Gant said that “oocytes will remain detectable in a stool sample for extended periods of time, far exceeding the time elapsed in confirmatory testing by the reference laboratory.” When he was pressed on this issue in cross-examination, Professor Threlfall admitted that he could not point to any scientific papers to back up his assertion; and

In light of the above, on the balance of probabilities the positive result at the regional laboratory was a false positive.

The fact that there were points that could be made in favour of the conclusion that the Appellant had ingested cyclospora does not mean that the judge reached a conclusion that no reasonable judge could come to. It is almost always the case in a trial that there will be evidence pointing either way.

I now come to the specific grounds of challenge that are relied upon by Mr Pennock in relation to the cyclospora issue.

It is convenient to deal first with the contention that answers given by Dr Gant at the end of his cross-examination “destroyed” the Respondent’s case because the Respondent’s expert witness had accepted that the judge should proceed on the basis that it was probable that the Appellant had ingested cyclospora. In other words, Mr Pennock submitted that no reasonable judge could have done anything other than find in favour of the Appellant on the cyclospora issue, in light of the concession that was made by Dr Gant at the end of his cross-examination.

I am unable to accept this submission. The judge expressly referred to the evidence in question in his judgment. The judge found that Dr Gant had clarified what he had said in the relevant part of his cross-examination during his re-examination. The judge concluded that Dr Gant had made clear that he did not think that there was a probable finding of cyclospora oocytes.

In my judgment, the judge was entitled to come to this view and, indeed, he was plainly right to do so. The starting point is that, in his report and in the joint statement, Dr Gant had made absolutely clear that it was his view that the result obtained by the national reference laboratory was the one that should be relied on, and so that, when both results were taken together, the conclusion should be that there was no evidence of cyclospora oocytes in the Appellant’s stool sample. The passage in the cross-examination, upon which Mr Pennock places so much reliance, was a passage in which Mr Pennock was seeking to get the witness to accept that precedence should be given to the outcome of the test at the regional laboratory. Mr Pennock pointed out that Public Health England (PHE) and national and regional laboratories treat a positive test by a regional laboratory which is not subsequently tested by the national reference laboratory or another laboratory as a probable case of cyclospora. He asked Dr Gant whether there was any reason why the court should not take the same approach – i.e. that a single positive test is enough to prove cyclospora, even if there is no further confirmatory test. Dr Gant said that there were several reasons why the court should not take the same approach and treat it as a probable case of cyclospora. He explained that there were practical and pragmatic reasons why PHE treats a single positive test as a positive case of cyclospora. He explained that it was not a sensible use of resources to have a confirmatory test, especially as the test is expensive, and that it was necessary to move swiftly to treat the patient. The treatment, with co-trimoxazole, would be suitable for infections with similar pathogens and would not harm the patient even if, in fact, they do not have cyclospora.

So far, none of these answers amounted to a concession or in any way undermined the evidence that Dr Gant had given in support of the conclusion that the Appellant had ingested something other than cylosopora.

It was at this point in the cross-examination that Dr Gant concluded his answer with the words:

“So it’s epidemiological, it’s to do with pragmatism, limited resources, and it allows for definition to be put in place, and it’s probable and you’re right that’s how it is. So for the court that is what the particular specimen or this particular case might be described as.”

Mr Pennock considered that this answer gave him what he wanted and was a concession that the judge should treat the regional laboratory test as meaning that it was probable that the Appellant had tested positive for cyclospora. It was for that reason that he stopped his cross-examination at that point. Unfortunately, in my judgment, this answer, read in context, does nothing of the sort. It was simply saying that the court should understand that, for the purposes of the treatment of patients, and in accordance with PHE guidance, a single positive test for cyclospora at a regional laboratory is treated as a probable case of cyclospora. It was not a concession, contrary to all of Dr Gant’s evidence that had gone before, that the judge should treat the positive test at the regional laboratory as meaning on the balance of probabilities that the Appellant had ingested cyclospora, despite the result at the national reference laboratory.

That this is the right interpretation of Dr Gant’s evidence in cross-examination is confirmed by what he said immediately afterwards in re-examination. He was asked, “Given the two results, one by the local lab, one by the national reference lab, do you think on the balance of probabilities that is evidence of cyclospora?”. Dr Gant said, “No. In this specific case I do not. I agree that the paper work says probable. I do not believe in this case that cyclospora was ever involved.” In other words, Dr Gant was saying that, notwithstanding that the Health Service treated this as a probable case of cyclospora, the negative test at the national reference laboratory proved that it was not. Later in his re-examination, Dr Gant said, “I do not believe that cyclospora was found either.”

Accordingly, the answers given by Dr Gant in cross-examination did not mean that the judge was bound to find in the Appellant’s favour on the cyclospora issue.

The next question is whether, as Mr Pennock submitted, no reasonable judge could have found for the Respondent on the cyclospora issue, because the expert evidence of Dr Gant was fatally undermined by the fact that the particular reason why, in this case, Dr Gant took the view that the Appellant did not have cyclospora notwithstanding the positive result at the regional laboratory was because he had understood that she was ill before she left for Mexico. The judge found that the Appellant was not, in fact, ill before she left on holiday.

I do not accept this submission. It is clear from Dr Gant’s report, the joint statement, and his oral evidence that the fundamental reason why he concluded that the Appellant did not have cyclospora was because the outcome of the test conducted at the national reference laboratory was extremely reliable, and was to be preferred to the outcome of the test conducted by less experienced technicians at the regional laboratory. Put bluntly, his view, based on expertise and experience, was that the national reference laboratory was better at this sort of thing than the regional laboratory. Dr Gant said that the regional laboratories were not experienced in testing for cyclospora, and that very similar sized and shaped yeasts can be falsely identified as cyclospora.

Mr Pennock submitted that the judge misunderstood the evidence about testing for cyclospora and proceeded on the basis that tests were binary, so that either the regional laboratory’s test was wrong, or the national reference laboratory’s test was wrong. I do not accept this submission. It is clear from the judgment that the judge fully understood the different expert views that were expressed about the significance of the difference in outcome in the two tests. He heard evidence from the Appellant’s expert, Dr Threlfall, as to why the negative test at the national reference laboratory did not mean that the earlier positive test was wrong, but, for the reasons given in the judgment, he rejected it. There was evidence that it was not uncommon for there to be different results in tests for cyclospora in regional laboratories and the national reference laboratory, but this did not mean that the national reference laboratories testing was wrong.

Mr Pennock submitted that the judge failed to appreciate that a single positive test is enough to mean that the presence of cyclospora was “probable” and the purpose of the second test was to turn “probable” to “certain”. With respect, this misses the point. As stated above, the Health Service treats a single positive test, for its purposes, as “probable”, for pragmatic reasons, but that does not mean that the judge was obliged to accept that the test at the regional laboratory was correct.

Mr Pennock referred to scientific papers: the judge was shown some scientific papers in the bundle, but there was no need for him to review them in his judgment. The decision really came down to an evaluation of the evidence, including the live evidence, of Professor Threlfall and Dr Gant. Put another way, there was nothing in the scientific literature which compelled the judge to find in the Appellant’s favour on the cyclospora issue. Mr Pennock also said that the scientific evidence proved on a balance of probabilities that the Appellant had ingested cyclospora. With respect, this is simply an assertion. The evidence of the expert microbiologists was expert evidence, and the judge was entitled to prefer Dr Gant’s evidence.

Mr Pennock submitted that the judge failed to deal with the potential explanations for the different laboratory results. There were two such potential explanations raised with me by Mr Pennock. The first was that cyclospora oocytes were low shedding and so there may have been one or two in the slide that the regional laboratory examined, but none in the slide from the same stool sample that the national reference laboratory examined. This was not put to Dr Gant, and there was no scientific evidence for this proposition. Professor Threlfall’s point was something different, namely that oocytes can degrade or disappear in the course of a week. Mr Pennock also said that there was evidence that the different laboratories used different techniques. In fact, however, Dr Gant said that the techniques used were similar, but, in any event, if different techniques were used, this is not in itself a reason to favour the first test over the second. There was clear evidence that the national reference laboratory was more expert at this type of testing.

I accept that there is a point in the judgment at paragraph 70, at which the judge referred to Dr Gant’s lab and Professor Threlfall’s lab. This was a slip. The national reference laboratory was, in a sense, Dr Gant’s lab, but Professor Threlfall had no connection to the regional laboratory. In fact, Professor Threlfall had been retired since 2010. However, it is clear what the judge meant: the reference to “Professor Threlfall’s lab” was plainly a reference to the regional laboratory which was Professor Threlfall’s lab in the sense that Professor Threlfall was advancing the view that the regional laboratory’s result was to be preferred. In any event, even if, contrary to my view, the judge had thought for a moment that Professor Threlfall had a connection with the regional laboratory, this had no significance for the judge’s reasoning.

Finally, on the cyclospora issue, Mr Pennock said that Dr Gant’s view that national reference laboratory was more expert and experienced than the regional laboratory was an unsubstantiated assertion, without evidence. This is not the case. Dr Gant is an expert microbiologist and the Clinical Director at the hospital at which the national reference laboratory is based. He was very well placed, in light of his expertise and experience, to opine on these matters. He explained his views on this matter.

Whether or not he had erred in relation to the cyclospora issue, Mr Pennock submitted that the judge had erred in relation to the causation issue in the following respects, namely by failing to appreciate, give proper weight to, or deal properly in his judgment with, the following matters of evidence which supported the conclusion that the Appellant’s illness had been caused by a pathogen ingested from food or drink at the hotel:

In his oral submissions, Mr Pennock emphasised the following points in relation to the causation issue:

In my judgment, as with the cyclospora issue, there was ample evidence to justify the judge’s conclusion on the causation issue. He did not misunderstand the evidence, or overlook key evidence, and he gave more than adequate reasons for his conclusion on this issue. The judge reviewed the evidence carefully and thoroughly.

The Appellant’s task of proving, on the balance of probabilities, that she was made ill by a pathogen ingested from food or drink at the hotel was made more complicated, though not impossible, by the judge’s finding that she had not ingested cylospora. The judge went on to consider the causation issue on the basis that the Appellant had ingested a pathogen that was not cyclospora whilst she was resident in the hotel in Mexico.

The burden of proof rested with the Appellant. It was for her to prove, on the balance of probabilities, that she had ingested a pathogen from food and drink at the hotel. It was not necessary for the Respondent to plead a specific alternative method by way the Appellant had, or might have, ingested the pathogen.

As I have said, the judge ultimately decided the case on the burden of proof, as he was bound to do.

It is true that the alternatives were necessarily speculative. As the Appellant’s own witness, Professor Threlfall, had said, unless the source can be isolated and identified at the point when infection takes place, it is not possible to be certain what the source was. However, this does not mean that the Respondent was not entitled to posit alternative sources, in support of a contention that the Appellant had failed to prove that the source was food and drink at the hotel. There were a number of potential alternative sources. In particular, as Dr Gant explained in his evidence, the Appellant could have ingested the pathogen by touching a surface that was contaminated with the pathogen and then putting her hand to her mouth. Alternatively, the Appellant could have touched a pathogen with her hand and transferred it to her mouth when wading in the sea or swimming in the swimming pool (even if she had not put her head under the water).

The judge was entitled to consider these possibilities, even though there was no direct evidence of a contaminated surface at the hotel, or any direct evidence that the Appellant, or anyone else, had touched a contaminated surface. The judge said that he would have to look to circumstantial evidence.

It is true that there was no evidence that the Appellant ingested food and drink in Mexico anywhere else apart from the hotel. Indeed, it was clear that she had not done so before she started to exhibit symptoms. This means that the possibility that the source of the pathogen was food and drink outside the hotel could be discounted. There is no suggestion in the judgment that the judge fell into the trap of thinking otherwise.

The judge considered the evidence of the microbiologists, Professor Threlfall and Dr Gant. As I have said, the Appellant’s own gastroenterology expert, Dr Bowling, accepted that expert evidence on causation was a matter for microbiologists, not gastroenterologists. The judge accepted Dr Gant's evidence that the Appellant’s illness could have come from a range of sources. Dr Gant was qualified to give evidence of this type.

The judge took into account the evidence about food and hygiene procedures at the hotel, including the 2016 Audit. In his oral submissions, Mr Pennock criticised the judge for placing insufficient weight on the results of the Audit. The weight to be placed on the Audit was a matter for the judge. He plainly considered it carefully and gave reasons for his conclusion that it was not strong evidence of a problem with poor food hygiene at the hotel. Though the Audit found a number of failings, which the judge listed, and which included a failure to maintain hot food at the right temperature, the judge concluded, as he was entitled to do, that the food audit score overall was positive, with a score of 4 out of 5 on food and drink. The score was positive on some 50 measures for food and drink. It is also worth noting, though not specifically mentioned by the judge, that Dr Gant had said that he has expertise in food microbiology and that there have been great improvements in food preparation and handling standards in hotels in countries like Mexico over the last few years. Also, in his report, Dr Gant said that the hotel scored 99.93 out of 100 in another audit, the SGS Audit, of 24 July 2017, a year after the Appellant fell ill. There were no “critical defects.”

It follows that the judge did not think that there was clear evidence of failings at the hotel in relation to food hygiene and this was a view that was open to him on the evidence.

The judge considered that it was important to note that there was no evidence of a more generalised outbreak of food-based illness at the hotel at the time of the Appellant’s illness. This was plainly a relevant consideration, even though illness could be sporadic (i.e. not part of an outbreak affecting other people as well). The judge was aware of the evidence that had been advanced on this issue. There were no records, from the hotel or the Respondent, of any complaints of diarrhoea or vomiting from any other guest. This contrasted with other months, where there were some records. The judge bore in mind that the records were not entirely reliable but nevertheless concluded that general trends could be derived from the records and that this did not support the Appellant’s case. He was fully entitled to treat the evidence in this way. The fact that the Appellant would have preferred that the judge placed a different interpretation or weight on this evidence is not a reason to allow an appeal against the judgment. It was for the judge to decide upon the weight to place upon this evidence. I should add that Dr Threlfall agreed in cross-examination that there was no positive evidence of illness at the hotel at the time of the Appellant’s visit.

The judge said that the Appellant made no complaint about food hygiene in the resort whilst she was at the hotel. This is not challenged. She accepted this in cross-examination. The judge also said that the Appellant had not made a complaint about food hygiene in the resort when she made her first complaint to the Respondent. Mr Pennock submitted that this was in error. I have been provided with a copy of the complaint, which was made by email on 17 September 2016. In the complaint, the Appellant said that she found out that she had a parasite called cyclospora which she picked up at the hotel. She said that it had been picked up at Riu Vallarta as she did not eat anywhere else in the hotel and that the Respondent is “responsible for the poor hygiene that caused this parasite.” I accept that, read in full, this is a complaint about illness resulting from poor food hygiene at the hotel. However, I do not accept that this comes anywhere close to being a reason why the judgment cannot stand. This observation by the judge comes early in the judgment, at paragraph 10, and is not in the part of the judgment which sets out the reasons why the judge has decided to dismiss the Appellant’s claim. Moreover, the exact nature of the complaint cannot have any relevance to the causation issue. The Appellant is not a microbiologist, and she was not in a position to know whether the illness was caused by a pathogen found in food or elsewhere.

Mr Pennock submitted that the judgment cannot stand because there was uncontested evidence that the Appellant and her partner had concerns about hygiene deficiencies in relation to food preparation and display at the hotel. This included that some hot food was lukewarm. It is true that the Appellant gave evidence about such concerns, and they are mentioned by the judge in its judgment. However, once again, this had little or no significance for the causation issue, because the Appellant and her partner were not food preparation specialists. There was evidence (from Professor Threlfall) that the UK Food Standards Agency says that hot food can safely stand out of temperature control for up to two hours without a heat source. In those circumstances, a guest might think that the food is lukewarm, and yet the food is perfectly safe.

Mr Pennock also submitted that the judge erred because he did not deal with evidence that there had been outbreaks of cyclospora in Mexico in 2016. However, this was dealt with conclusively by Dr Gant. He said in the joint statement that the outbreak had been in the area of Cancun, some 2,500 km from the part of Mexico which the Appellant visited. In cross-examination, Professor Threlfall accepted that there was no evidence of a general outbreak of cyclospora in Western Mexico in the vicinity of the Appellant’s hotel. This was, frankly, a point that went nowhere and so it is not surprising that the judge did not mention it in his judgment. A judge is not required to refer to every point that is raised during a trial.

A point that was emphasised by Mr Pennock particularly in his oral submissions was that, in cross-examination, Mr Guitterez had accepted that the hotel had commissioned laboratory reports of microbiology samples of food and drink, and he had provided those reports to the defence, but they had not been disclosed in the litigation. This was, Mr Pennock submitted, highly suspicious, and the obvious inference is that the reports showed evidence of contamination of food by pathogens which was being covered up. The judge overlooked this, not even mentioning it in his judgment.

I am afraid that I cannot agree that this is a good ground of appeal. I have been shown the passage in the cross-examination. Mr Guitterez was not working at the hotel at the time when the Appellant visited it. He can have had no direct knowledge of whether the hotel had obtained laboratory reports into food and drink, which would show that there were pathogens in the food, during July 2016. The Respondent disclosed reports of tests made during that month which, on examination, turned out to be the results of tests into the swimming pool, not the food and drink. During determined cross-examination, Mr Guitterez appeared to concede that there must have been reports on food and drink and that he must have given them to the Respondent. I think that this was a storm in teacup. The obvious explanation for this is that Mr Guitterez became confused, and that, in fact, there were no reports into the food and drink at the hotel in July 2016 in the possession of the Respondent, or their solicitors. There is certainly no sufficient basis for inviting the judge to draw an adverse inference based upon alleged concealment of damaging documentation on the part of the Respondent or their solicitors. In his closing submissions at trial, Mr Pennock did not invite the judge to draw such an adverse opinion, and the judge cannot be criticised for failing to do so of his own motion, or for failing to mention the point.

Finally, Mr Pennock submitted that, in the vast majority of cases, the sources of pathogens causing illness are food or drink and Dr Gant did not give evidence about the degree of likelihood (as opposed to the possibility that the pathogen might have been ingested from another source). Only Dr Bowling and Professor Threlfall did that. I cannot accept this submission. Dr Bowling made clear that he could not express a view on causation. When cross-examined by Mr Saxby, he said that it was not his job to consider the detail of the acquisition of pathogens. It was his job to diagnose and to manage symptoms. Professor Threlfall gave evidence (for the first time in cross-examination) that pathogens can be acquired from another source, apart from food or drink. He said that it was very, very rare. Dr Gant was not cross-examined about this issue, which had not been addressed by either expert in their reports, perhaps because Mr Pennock was confident that the judge would find that the Appellant had ingested cyclospora and so he did not need to cover the possibility that the Appellant had ingested some other pathogen in a different way. Dr Gant did give evidence on these matters. He was permitted to do so by way of re-examination, because, as I have said, the issue was first raised by Professor Threlfall in cross-examination. He said that food hygiene has greatly improved in recent years and so the pattern recently has been that most illnesses on holiday are caused by person-to-person transmission of e coli. Dr Gant was asked directly by Mr Saxby if he thinks that on the balance of probability, if the pathogen was not cyclospora, that the source was food or drink. Dr Gant said “no”.

Accordingly, Dr Gant did give evidence that on his view it was more likely than not the source of the pathogen that caused the Appellant’s illness was not food or drink at the hotel, and gave reasons for his view. It follows that the judge was not obliged to accept Dr Threlfall’s view.

In his submissions, Mr Saxby submitted that the Appellant should not be permitted to advance some of the points that are now relied upon by Mr Pennock, because he did not cross-examine Dr Gant on it, and the authorities state that if a point is going to be taken against the evidence of a witness, that witness must be cross-examined. I do not need to deal with this submission because, for the reasons I have already given, I have concluded that the appeal should not succeed in relation to the causation issue.

I have concluded that the criticisms of the judge for failing adequately to give reasons for his conclusions on the cyclospora point and the causation point are not justified. Mr Saxby submitted that, even if there was some force in them, the appeal should not succeed because Mr Pennock did not take up the opportunity to invite the judge to give further reasons at the time of the hand-down of the judgment. Though it does not arise for determination, I should make clear that I do not accept this submission. It is true that the authorities say that a party should ask for elaboration from a judge at the time of judgment, if the party thinks that something has been missed out. But in the Glas SAS case, Falk LJ made clear that a party is not prevented from appealing if they fail to do so. In my judgment, in many cases, including this one, it would be unfair to criticise a party for failing to seek clarification or elaboration at the time that the judgment is being handed down. This judgment was given remotely. It is asking too much, in my view, to expect either party to assimilate the reasons given by the judge at such speed that they are in a position to ask for further points to be dealt with as soon as the reading of the judgment is concluded. They might reasonably think that they would not be very popular with the judge if they did, and it would be unreasonable to expect the judge to be in a position to give detailed additional reasons on the spot.

I have dealt with the issues that have been raised in this appeal in considerable detail. I have, I believe, dealt with every one of the grounds raised by Mr Pennock on behalf of the Appellant. They do not persuade me, singly or together, that the appeal should be allowed. But I remind myself, in any event, that the judge had the benefit of hearing all of the evidence, which I did not. As Lewison LJ said in the Fage case, cited in Wheeldon, all an appellate judge does is a form of island hopping. Even if one or two of the points raised by Mr Pennock had some force, I would have been reluctant to consider allowing the appeal. This was a careful and impressive judgment which addressed all of the main issues in the case. The judge was better placed than me to consider all of the evidence. The irreducible fact is that the judge accepted the expert evidence of the Respondent’s key witness and preferred it over the evidence of the Appellant’s key expert witness. I also bear in mind what was said in Fage to the effect that a trial is not a dress rehearsal. The purpose of an appeal is not to allow the losing party an opportunity to rehearse the same arguments before a different judge in the hope that the different judge will reach a different conclusion.

This has been in substance the hearing of an application for permission to appeal, with appeal to follow if successful. In reality, I have heard and determined the full appeal. In those circumstances, the question whether I should refuse permission to appeal, or should grant permission and then dismiss the appeal, is academic. I have considerable doubt as regards whether the arguments advanced on behalf of the Appellant surmount the threshold of a real prospect of success, but I have decided to proceed in accordance with the reality of the situation.

Accordingly, I grant permission to appeal but dismiss the Appellant’s appeal.