COVID REPEATS 32: EXPERTS: SEEING THE WOOD FOR THE TREES: THE EXPERT THAT DIDN’T BOUGH DOWN TO THE RULES…
This week, providing there are no major developments that draw us elsewhere, the repeats are going to be about cases relating to experts. Firstly we go back to 2014 the judgment of Mr Justice Coulson in Stagecoach Great Western Trains -v- Hind & Steel  EWHC 1891 (TCC) where the judge had quite a bit to say about the conduct of the claimant’s expert.
The action was brought by a train company whose train had been damaged by a tree that had fallen from the first defendant’s property onto a train track. It also brought an action against a tree surgeon who had worked on the tree. The judge decided that there had been no breach of duty by any of the defendants. However what the judge had to say about the expert evidence is of particular interest to litigators and experts alike.
COMMENTS ABOUT THE EXPERT EVIDENCE
4. THE EXPERT EVIDENCE
Not all of the expert evidence was satisfactory. In a case of this sort, what assists the court most is agreement about the state of the Tree before the incident and, in connection with the case against Mr Steel, a discussion of the various professional obligations which he may or may not have had. Instead, although there was a useful Joint Statement, the experts, particularly Mr Sheppard, spent far too much time dealing with matters of law and contentious matters of fact. There was also an uncomfortable amount of switching between that which the experts said an arboriculturalist should or could have done, and that which they suggested may be an obligation on the part of the landowner, without these boundaries ever being properly delineated and adhered to, and with no real regard for the fact that the latter issue was a matter for the court, not the experts.
When he visited the site in June 2010, Mr Sheppard (who had been instructed by the claimant and was already liaising with the claimant’s solicitor) briefly inspected the site and then had what was called an informal conversation with Ms Hind. As they were speaking, and rather betraying that alleged informality, Mr Sheppard made some rough notes on a small scrap of paper. He then went back to his car and expanded on his notes, principally by inserting questions into the notes that he had already made. There has been a long-running dispute about the accuracy of the notes. Moreover, although he 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 failure.
When he was cross-examined by Mr Stead, on behalf of Ms Hind, it quickly became apparent that there were significant inaccuracies in the notes that Mr Sheppard had made. For example, Mr Sheppard noted that Ms Hind had said that she “never” went to the area of the garden where the Tree was. Ms Hind vehemently denied saying that, and stressed instead that she had told Mr Sheppard that she did go there (as part of her general observations of the trees), albeit that (because of the overgrown nature of the area) her visits were relatively rare. In cross-examination, he accepted that, although he could no longer remember the conversation, “rarely” was the word she had used. There was no explanation as to why, in his notes, he had deleted the word “rarely” and inserted the word “never”.
There were numerous other errors and misleading changes of emphasis in Mr Sheppard’s notes. Again by way of example, Ms Hind gave evidence that, during that conversation, she told Mr Sheppard about the work which Mr Steel had done. Although Mr Sheppard could not remember the conversation, he continued to deny that she had made any mention of Mr Steel’s work. That seems inherently implausible, since she would have had no reason not to mention that work, particularly as she was talking about the trees in her own garden. That implausibility was then underlined by the fact that, in his first report, dated 2010, Mr Sheppard made express reference to the work done to the trees in the garden. There was no source for that information other than Ms Hind. This again demonstrated the inaccuracies of Mr Sheppard’s note-taking technique, and his equally unreliable recollection of the conversation.
Still further, I noted that, in his reports, Mr Sheppard sets out a large number of things which he said Ms Hind had said to him during that interview. They are expressed as things which Ms Hind ‘stated’. But these were not matters which were referable even to the (inaccurate) notes that he had made. When Mr Stead cross-examined him about this, he accepted that these were his words, rather than Ms Hind’s, and were his ‘interpretation’ of what she said or would have said. That meant that the reports were doubly misleading, both because they failed accurately to report what Ms Hind had actually said, and because they identified her as saying things which were, in truth, just Mr Sheppard’s interpretation of what he thought she would have said.
In the context of this case, these failures matter. Ms Hind, an intelligent woman and a keen gardener with a working knowledge of trees (see paragraphs 75-80 below), was portrayed in Mr Sheppard’s reports as someone who did not care about this Tree, or any of the trees in her garden at all, and had cheerfully let it all go to rack and ruin. There was even an echo of this stance in Mr Meredith Hardy’s closing submissions. I consider that this picture of Ms Hind was wholly misleading and inaccurate.
I deprecate this aspect of the claimant’s case in the strongest terms. Save in exceptional circumstances, experts should not embark on this kind of fact-finding exercise, particularly when they perform it so unprofessionally. 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. Neither of these things happened. Inevitably, therefore, these failures meant that I regarded the remainder of Mr Sheppard’s evidence with considerable scepticism.
Unhappily, my reservations about Mr Sheppard’s evidence did not end there. As will become apparent below, there is a significant issue in this case about whether Ms Hind should have regularly arranged for more detailed expert inspections of the trees at the property as a matter of course, or whether such inspections were only necessitated if there was some indication that there may have been a problem with the Tree. In his first report, at paragraph 7.5, Mr Sheppard accepted that the need for more detailed inspections was only triggered “if the tree displays unusual characteristics”. However, by the time that paragraph was repeated in his second report (and after the matter had been discussed with the claimant’s solicitors), it had been trimmed and the reference to the requirement for some form of trigger had been deleted entirely.
Mr Sheppard said that this trimming was for reasons of space. I regret that I am wholly unable to accept that explanation: indeed, I regard it as so absurd as to constitute further evidence that Mr Sheppard was not acting as an independent expert in accordance with CPR Part 35. It is plain that paragraph 7.5 of Mr Sheppard’s first report was his honest belief, and, as we shall see, it is one that was in accordance with the authorities. But it was clearly detrimental to the claimant’s case (because of the difficulty in pointing to anything which indicated that this apparently healthy tree was, in fact, potentially unsafe). I find that this was the reason why this important passage was omitted from the second report. It again confirmed my view that Mr Sheppard’s expert evidence was unreliable.
EXPERTS TRYING TO DECIDE ISSUES OF FACT
There are a number of issues in the judgment of general importance.
- Experts trying to deal with the law.
- Experts trying to deal with contested issues of fact.
- Experts failing to take proper notes.
- Experts revising their report with no real explanation.
All of which made, no doubt, good cross-examination material.