Can expert evidence outside of Part 35 be admissible?

The recent case of Rogers v Hoyle [2014] EWCA Civ 257, [2014] All ER (D) 131 (Mar)  in the Court of Appeal found that an Air Accident Investigation Branch (AAIB) report was admissible as evidence in a negligence action brought against the pilot of a plane which had crashed resulting in the death of its passenger. Quadrant Chambers’ Rob Lawson QC, a leading practitioner in aviation who represented the appellant, discusses the ramifications of this decision.

Original news

In the course of negligence proceedings following an aircraft accident, the judge admitted the report of the AAIB investigation into the crash. The pilot appealed.

The Court of Appeal, in dismissing the appeal, held that the report was admissible, but if any part was subsequently found not to be, it should be left out of account. Further, the report had not fallen within the Civil Procedure Rules 1998, SI 1998/3132, Pt 35 (CPR), requiring the permission of the court and its admissibility was not so likely to prejudice the interests which the AAIB was there to serve that it should be excluded from consideration.

What key issues did this case raise?

There are two key issues here. The first is whether AAIB reports can be used as evidence in civil proceedings in respect of the findings and conclusions they contain (which are inevitably directed towards the causes of the accident or incident in question).

But there is a wider issue than just aviation that comes out of it, which is whether and when expert opinion evidence can be used in civil proceedings outside the constraints of CPR Pt 35. Part 35 provides a code in respect of the use of expert evidence which says that you can only use it with the permission of the court and if it complies with certain conditions, one of which is the expert’s compliance with an overriding duty to the court.

An AAIB report does not comply with those rules. So the question was whether you can have expert evidence outwith Part 35?

According to the Court of Appeal you can.

How did the court approach the question of expert evidence and the rule established in Hollington v Hewthorn?

The actual decision in Hollington v F Hewthorn & Co Ltd [1943] KB 587, [1943] 2 All ER 35 is one which has attracted a considerable volume of judicial criticism over the years. However the rule that it is now taken to represent has been reaffirmed by our higher courts on several occasions.

The rule is, in essence, that findings of a person other than the trial judge hearing the case are not admissible at the trial because it is not possible to determine what weight, if any, could be placed upon them by the trial judge without the distraction of conducting a collateral enquiry to that effect—ie without retrying the findings to determine the basis upon which they were made and whether they were correctly or reasonably made.

In our case the court approached this rule very much by focusing on one sentence of the judgment of Lord Goddard in Hollington v Hewthorn, where he said that there was a ‘well recognised exception to this rule in the case of scientific or expert witnesses’.

They reasoned from there that the rule does not apply to findings of someone sitting in an expert capacity (for which purposes they made clear that decision-making is not in itself an expert capacity). So as soon as the person making a decision has a degree of expertise which is relevant to the decision or the finding they have to make, then according to the Court of Appeal their finding falls outside the rule of Hollington v Hewthorn.

The Court of Appeal has therefore treated expert evidence, or findings, as a special case because the expert input takes it outside the scope of the Hollington v Hewthorn rule. This then led the court to the consideration of whether there is any procedural bar to the admission of such expert findings because the report would, or could, not comply with CPR Pt 35.

They dealt with this by holding that there is no such bar because of the definition of an ‘expert’ in Pt 35. They held that Pt 35 only applies to a person who has been instructed to give or prepare expert evidence for the purpose of the proceedings. They reasoned from this that if you are looking at expert evidence given in any other context, because it’s been produced for another purpose perhaps, then there is nothing in the CPR that prevents it from being admitted, and because it is admissible at common law it can therefore be heard.

Did the judgment clarify the law in this area? Are there any remaining grey areas?

Yes and no. It makes it clear that expert findings do not fall within the scope of the Hollington v Hewthorn rule, but it gives no clear guidance as to when a finding is outside this rule on this basis. In particular, the judges said that ‘if and insofar as the (expert’s) conclusion is informed by, or a reflection of, that expertise,’ then it’s admissible, but ‘insofar as an expert’s report does no more than opine on facts which require no expertise of his to evaluate, it is inadmissible’. This will lead to issues of admissibility being raised at trial precisely because you cannot determine whether or not the expert’s expertise is relevant to his evaluations without retrying the whole matter before the trial judge.

It also makes clear that Pt 35 is not a comprehensive and exclusive procedural code regulating the admission of all expert evidence in civil proceedings but rather regulates only one class of expert evidence, namely experts instructed to give an opinion for the purposes of the proceedings in question. However it has now unleashed an unregulated category of expert evidence which is admissible without the need to get permission from the court and without any procedural safeguards regulating its use or content and thus leaving considerable scope for argument at trial as to what weight, if any, can be attached to it.

What should lawyers advising in this area of law take note of?

Specifically regarding aviation matters and AAIB reports, which we now know are admissible, there are two points to make:

Firstly, by the statutory instrument governing the AAIB the draft of any AAIB report must be served on any person whose reputation is likely to be affected adversely by the content of that draft report—ie by the findings and conclusions that it makes (or if that person is deceased, upon the person representing their best interests). The purpose of serving that draft report is so that that person can make representations to the AAIB before the report is finalised and published.

Lawyers representing such persons will therefore have an added reason to take note of the draft report and to challenge any findings contained within it with which they take issue in case the report as published is then used against them as expert findings to support civil proceedings subsequently brought against their client. Further, they may even have to consider seeking judicial review if the finalised report does not heed any reasonable representations that they make.

Secondly, it leads to the potential need to scrutinise and challenge the weight to be given to the findings in an AAIB report in the context of civil proceedings and for that purpose there are two matters which are of potential importance. First of all, it will require the lawyers of such persons to consider whether they need to apply to the court to get disclosure of the documents upon which the AAIB report is based. There is a mechanism provided for this within the AAIB’s governing statutory instrument which in essence makes them prima facie not disclosable but I’m only aware of four previous successful applications. That may now change, because it is difficult to test the weight to be given to a report justly without being able to see the material on which it is based.

Lawyers will also need to consider whether they need to witness summons the AAIB to appear at trial so they can be cross-examined for the purposes of undermining the weight that might otherwise be wrongly attached to the findings in the report.

More generally, there is also a need for lawyers to take note of the potential use of expert evidence outside the scope of Pt 35—firstly of using expert opinion which is already sitting in the public domain and secondly from an in-house source where the client or party for whom they act has expertise of its own relevant to the matters in litigation.

In practice such expert evidence has been admitted on occasion in court proceedings in the past, particularly in the Technology and Construction Court, but there has not hitherto been a proper analysis of the legal basis upon which it is admissible. That has now been provided and one can anticipate that its use may become more frequent and certainly lawyers representing parties will have to consider whether they should introduce such expert opinion evidence, in particular from their own client.

Are there any trends emerging in this area? What are your predictions for the future?

So far as civil proceedings are concerned there is a trend in the law of evidence away from technical rules, especially concerning admissibility of evidence, towards the idea of allowing everything in and making the only material issue one of what weight is to be attached to it in all of the circumstances. This judgment is a further step along this path.

Unless there is a procedural rule change one can anticipate that a lot more time may be spent at trial undertaking collateral enquiries as to the weight to be attached to expert findings admitted from non-Pt 35 experts which, ironically, the Hollington v Hewthorn rule was designed to prevent.

In relation to the AAIB specifically, by its statutory instrument it is given the sole objective of preventing air accidents and incidents and is not to apportion blame or liability. However this judgment gives a green light for its reports to be used by litigants for precisely the latter purpose, with the result that the AAIB is likely to be dragged into litigation as a result. While this may be in the interest of justice in any given case, it is an unwelcome distraction for the AAIB in the pursuit of its sole objective.

It will be interesting to see what will happen next in relation to AAIB reports—will there be an amendment to the AAIB’s governing statutory instrument to make them inadmissible? And for expert evidence more generally—will the CPR be altered to provide some sort of regulation of expert opinion evidence which doesn’t fall within the province of Pt 35 as it currently stands?

Rob Lawson is a barrister specialising in Aviation and Travel at Quadrant Chambers.

Interviewed by Fran Benson. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on Lexis®PSL Personal Injury on 25 March 2014. Click here for a free trial of Lexis®PSL.