[2014] 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.