Hoyle v Rogers & Anor

An accident-investigation report is not inadmissible merely because it contains conclusions about the circumstances or causes of an accident. The rule in Hollington v Hewthorn prevents a trial judge from relying on another decision-maker’s factual findings. It does not exclude a report which records factual evidence and expert opinion.

Civil Procedure Rules 1998 Part 35 regulates experts instructed for litigation. It is not an exclusive code for independent expert material produced outside proceedings. Where a report contains both admissible expertise and inadmissible opinion on ordinary factual disputes, the usual proportionate course is to admit the document and leave the trial judge to disregard inadmissible parts. A published AAIB report of real evidential value should not ordinarily be excluded under CPR Part 32.

Mr Rogers was killed when a Tiger Moth aircraft piloted by Mr Hoyle crashed. His mother and sister brought claims for the estate and as dependants, alleging that Mr Hoyle’s negligence caused the accident.

The Air Accidents Investigation Branch investigated and published a report addressing the flight, wreckage, witness material, data and the likely cause of the accident. Leggatt J held that the report was admissible and declined to exclude it: 2013 EWHC 1409 (QB). Mr Hoyle appealed, contending that the report offended the rule in Hollington v Hewthorn, failed to comply with CPR Part 35, or should be excluded in the court’s discretion.

The central issue was whether, and on what basis, an AAIB report could be received in civil litigation.

1. Appeal dismissed. Christopher Clarke LJ, with whom Treacy LJ and Arden LJ agreed, held that the AAIB report was prima facie admissible. The report was not a set of factual findings by another tribunal. It recorded factual material, including hearsay, and contained opinions capable of being expert evidence.

2. The rule in Hollington v Hewthorn [1943] KB 857 rests on trial fairness. The trial judge must decide the case on the evidence received at trial, rather than on another decision-maker’s opinion about facts. That principle did not exclude the report. Its factual statements could be assessed for their proper weight, and its technical opinions could be considered to the extent that they reflected relevant expertise.

3. The AAIB’s independence, statutory safety function, investigatory powers and specialist knowledge supported treating its investigators as experts at this stage. Anonymity, unattributed witness accounts, the team nature of the investigation and uncertainty about individual credentials went principally to weight. A trial judge should disregard any opinion which merely decides an ordinary disputed fact without requiring expertise. Where such material is intertwined with genuine expertise, excision is normally unnecessary and disproportionate.

4. CPR Part 35 did not apply. Its definition of an expert concerns a person instructed to prepare evidence for proceedings. The AAIB was independent of the parties and investigated for safety purposes, not litigation. Part 35 is therefore not a comprehensive or exclusive code governing the admission of all expert material, and permission under it was not required to adduce the report.

5. The discretion under CPR Part 32 was correctly exercised. The report was public, independent, prompt and potentially valuable evidence. Parliament had imposed a distinct disclosure regime for underlying protected records under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996, but had not made published reports inadmissible or subjected them to the same balancing test. The suggested chilling effect on safety investigations was too speculative to justify exclusion. Nothing in the ruling made the report conclusive, shifted the burden of proof, prevented challenge to it, or restricted other admissible evidence.

6. The court declined to admit the Secretary of State’s fresh evidence. Even if it had been admitted, it would not have altered the result.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the admission of the AAIB report and the refusal to exclude it under CPR Part 32: [2014] EWCA Civ 257.
• High Court: Leggatt J held the report admissible and declined to exclude it: 2013 EWHC 1409 (QB).