Petursson and Another v Hutchinson 3G

[2005] EWHC 920 (TCC)

Crusading expert lacked evidence

The Facts

The Claimants in this case sought an order for removal of the Defendant mobile phone company’s mast which, at the time the claim was started, was situated next door to the Claimants’ home.

The Claimants claimed that the mast, by its emissions, had caused harm to their family and dog, and as such were entitled to have it removed. Under the Telecommunications Act 1984, anyone who occupies or has an interest in land can object to the installation of a mast if it materially affects the enjoyment of their land.

By the time of the trial, however, the Claimants had sold their house and no longer had an interest in it.

The Issues

Firstly, whether the Claimants had any standing (locus standi) to seek the order, now that they no longer had an interest in the land; secondly, if they did, was the mast causing the prejudicial effect which they claimed?

The Decision

The Court found against the Claimants on the standing point. Nonetheless, the Court went on to assess the evidence of emissions from the mast, which was in effect a dispute between expert witnesses as to the capability of the mast to cause the symptoms the Claimants complained

of. The Court found that the mast was not capable of causing, and had not caused, the symptoms, and therefore the claim must fail in any event.

The Claimant’s expert was trenchantly criticised for not having been impartial or balanced. He “lacked balance and impartiality in relation to his evidence in this case. He did not adopt the objective approach which the court expects from an expert witness” (at paragraph 74 of the judgment).

Comment

Problems arise when experts become involved in a crusade and in that way an expert transmutes into an advocate for a cause – and that will almost inevitably undermine his evidence and credibility. Whilst one cannot in this case say with any certainty what was the actual reason for the lack of balance and loss of impartiality and objectivity of the expert in this case, the fact that the judge took the view he did must have a major effect on the reliability of that expert in this field in any subsequent case. Judicial criticism in a published case stays with an expert forever and can (and often will) have a major and potentially devastating effect on his career.