EWHC 1891 (TCC)
Stagecoach sought damages following a collision between a train and the stem of an Ash tree which had fallen onto the railway line from the garden of a property. As is usual with this type of case, much turned on the expert evidence. Here, a few weeks after Stagecoach sent out a letter of claim and before Ms Hind’s solicitors had written advising of their instruction, an expert arboriculturalist instructed on behalf of Stagecoach attended the property and interviewed Ms Hind.
Mr Justice Coulson had to consider the nature of the expert evidence. Here the Judge felt that although there was a useful Joint Statement, the experts spent far too much time dealing with matters of law and contentious matters of fact. He was more critical of the interview. Whilst the expert was speaking with Ms Hind he made rough notes. He then went back to his car and expanded on these, principally by inserting questions into the original notes. There was a dispute about the accuracy of the notes. Further, although the expert had told Ms Hind that he would send her a copy of the notes for her to agree, he failed to do so. There was no explanation for this. During the hearing it became apparent that there were significant inaccuracies in the notes. The Judge was clear that save:
“in exceptional circumstances, experts should not embark on this kind of fact-finding exercise … Matters of fact are for witnesses of fact, not for experts. Because a formal claim had already been made against Ms Hind by this time, she should at the very least have been interviewed by a solicitor and been given the opportunity of checking the resulting notes of that interview.”
Further, the Judge referred to the expert making a significant deletion of an issue (which was detrimental to the claimant’s case) between his first and second reports, noting that this was after the issue had been discussed with the claimant’s solicitors.
This inevitably led to the suggestion that the expert in question could not be regarded as acting independently in accordance with CPR Part 35 and which led to the Judge to conclude that the expert’s evidence was unreliable.