Rogers v Hoyle

The Court of Appeal held that an Air Accident Investigation Branch (AAIB) report is prima facie admissible in civil litigation both for factual material (including hearsay) and for expert opinion relevant to causation or technical matters. The court rejected the contention that the rule in Hollington v Hewthorn automatically excluded such material and concluded that CPR Part 35 does not operate as a comprehensive code excluding the admission of independent official expert reports prepared for non‑litigious purposes. The judge’s exercise of discretion under CPR 32 to refuse exclusion of the report was upheld: the public interest in safety, the independence and expertise of the AAIB, and Parliament’s different legislative treatment of reports and underlying records weighed against a general rule of exclusion.

The appellant, the pilot of a vintage Tiger Moth, appealed against Mr Justice Leggatt’s decision to admit the AAIB’s published report into the fatal crash of the aircraft on 15 May 2011. The respondents were the deceased passenger’s mother and sister seeking damages for death and dependency; the appeal was from 2013 EWHC 1409 (QB) to the Court of Appeal ([2014] EWCA Civ 257). The Secretary of State for Transport and the International Air Transport Association were permitted to intervene and filed evidence addressing the consequences of admitting AAIB reports in litigation.

The appeal raised three issues: (i) whether admission of the AAIB report offended the rule in Hollington v Hewthorn regarding reliance on findings of another tribunal; (ii) whether parts of the Report expressing expert opinion fell within the mandatory requirements of CPR Part 35 and were therefore inadmissible; and (iii) whether, even if admissible, the Report should be excluded in the court’s discretion under CPR 32 because admission would prejudice future safety investigations and deter cooperation.

The court analysed the statutory and regulatory framework for AAIB investigations (the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996, the Chicago Convention/Annex 13 and the EU Regulation 996/2010) and the content and purpose of AAIB reports. It distinguished between the Report’s factual material (narrative, wreckage observation, witness statements as recorded) and opinion material (pathology opinion, meteorological analysis, GPS/flight track analysis and conclusions about spin and height for recovery). The court held that factual material in the Report is admissible as evidence (notwithstanding hearsay), and that expert opinion in the Report is admissible where it is the product of recognised expertise; the AAIB investigators were inferable to possess sufficient expertise and their team approach does not undermine admissibility. CPR Part 35 governs experts instructed for litigation and is not an exhaustive code to the exclusion of independent official expert reports. The court affirmed that, where an expert report contains parts that are no more than lay opinion on matters for the tribunal, that goes to weight rather than admissibility and should generally be left to the trial judge to assess. On discretion, the court concluded that exclusion of such a public, independent, expert and safety‑oriented report would be exceptional. The court also refused to admit additional intervention evidence on balance and dismissed the appeal, while emphasising that nothing in the judgment makes any part of the AAIB report conclusive or shifts the burden of proof.

Appeal dismissed. The Court of Appeal held that the AAIB report was prima facie admissible both for factual material (including hearsay) and for expert opinion, that CPR Part 35 does not displace admission of independent official expert reports prepared outside litigation, and that the judge did not err in declining, in the exercise of his discretion under CPR 32, to exclude the Report. The court also declined to admit additional intervention evidence and confirmed that admission does not make the Report conclusive or shift any burden of proof.

Appeal from the High Court of Justice (Mr Justice Leggatt) 2013 EWHC 1409 (QB) to the Court of Appeal, comprising Lady Justice Arden, Lord Justice Treacy and Lord Justice Christopher Clarke. The Secretary of State for Transport and the International Air Transport Association were permitted to intervene.