Hoyle v Rogers & Anor

A published Air Accident Investigation Branch report is admissible in civil proceedings for its factual evidence, including hearsay, and its opinions informed by relevant expertise. The rule excluding another decision-maker’s factual findings does not exclude such evidence. Civil Procedure Rules Part 35 regulates experts instructed for proceedings and does not provide an exclusive code for expert evidence. An independently prepared accident investigation report falls outside that regime. Discretionary exclusion must accord with the overriding objective, with the burden on the party seeking exclusion. The statutory restrictions on disclosure of underlying investigation records do not govern admission of the published report. The trial judge determines weight, disregards inadmissible opinions and decides liability independently. Admission gives the report no conclusive status and shifts no burden of proof.

Orlando Rogers died when a Tiger Moth aircraft piloted by Scott Hoyle crashed. Rogers’ mother and sister brought negligence proceedings against Hoyle as executors of his estate and as dependants. The Air Accident Investigation Branch investigated the accident and published a report containing factual material and expert analysis.

The claimants sought to rely on the report alongside other factual and expert evidence. Hoyle disputed its account of the accident and applied to exclude it. Leggatt J held that the report was admissible and declined to exclude it under the court’s discretionary powers: 2013 EWHC 1409 (QB).

Hoyle appealed on the grounds that the report contained inadmissible factual findings, failed to comply with the rules governing expert evidence and should in any event be excluded. The Secretary of State for Transport and the International Air Transport Association intervened concerning the possible effect of admitting reports on aviation safety investigations. The central question was whether the report was admissible and whether the judge had properly declined to exclude it.

Appeal dismissed unanimously. Christopher Clarke LJ gave the substantive judgment, with which Treacy and Arden LJJ agreed.

1. The surviving foundation of the rule in Hollington v Hewthorn [1943] KB 857 was the preservation of a fair trial before the judge entrusted with deciding the case. Another decision-maker’s factual findings could not substitute for that judge’s independent assessment. Different considerations applied to factual evidence and opinions informed by relevant expertise. The AAIB report recorded evidence and contained expert analysis rather than merely presenting another tribunal’s findings.

2. The factual material was prima facie admissible, including primary and secondary hearsay. The investigators could at this stage be treated as experts in their respective fields. The threshold for expertise was relatively modest, with its degree generally affecting weight. Unattributed statements, omissions concerning qualifications and the report’s preparation by a team did not justify excluding it.

3. An expert’s opinion on disputed facts requiring no expertise was inadmissible and should receive no weight. Nevertheless, except in very clear cases, excising such passages was unnecessary and disproportionate where they were intertwined with genuine expert analysis. The trial judge should receive the whole document and disregard any inadmissible material.

4. Section 3 of the Civil Evidence Act 1972 preserved the common law position rather than providing an exhaustive code. Section 1(1) of the Civil Evidence Act 1995 allowed expert evidence to be received as hearsay without oral testimony. Part 35 of the Civil Procedure Rules concerned experts instructed to give or prepare evidence for proceedings. The AAIB was independent of the parties and its report fell outside that regime. Permission under Part 35 was therefore unnecessary. The contrary exclusionary approach to hearsay expert material in Humber Oil Terminals Trustee Ltd v Associated British Ports was rejected, although weaknesses in such material could substantially reduce its weight.

5. The discretion to exclude admissible evidence had to accord with the overriding objective of dealing with cases justly and at proportionate cost. The report’s independence, expertise, promptness and access to otherwise difficult or expensive evidence favoured admission. The party seeking exclusion bore the burden of persuading the court. The protected-records test in regulation 18 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 did not govern published reports. Parliament had provided distinct regimes for reports and underlying records.

6. The suggested harm to investigations and witness cooperation did not justify exclusion. Investigators remained free to express possible causes and were not required to establish civil liability or satisfy the civil standard of proof. The additional evidence was not admitted; even if admitted, it would not have changed the result. Nothing in the report was conclusive or prima facie conclusive, shifted the burden of proof, prevented challenge or restricted other admissible evidence.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 257 , the court unanimously dismissed the appeal and upheld the report’s admissibility and the refusal to exclude it. The additional evidence tendered on appeal was not admitted.
• High Court: Leggatt J, in 2013 EWHC 1409 (QB), held that the AAIB report was admissible and declined to exclude it as a matter of discretion.