Court of Appeal decision on the admissibility of an accident report prepared by the Air Accident Investigation Branch of the Department of Transport (the AAIB) as evidence in civil proceedings.

Admissibility, experts outside of Part 35, judicial discretion, aviation claims

Sarah Stewart of Stewarts discuss this recent Court of Appeal decision and what it means to bereaved families and injured survivors of aviation accidents in the UK.

The family of Former Royal Marine Captain Orlando Rogers have contributed to clarifying the law in relation to the admissibility of expert opinion contained in third party documents in civil proceedings.

On 15 May 2011 Orlando Rogers was a passenger in a vintage Tiger Moth propeller bi-plane of which the Defendant, Scott Hoyle, was the pilot. In the course of the flight the aircraft crashed to the ground near Witchampton in Dorset. Orlando was killed. Scott Hoyle was seriously injured but survived. A civil claim has been brought by the Claimants, the mother and sister of the deceased as executors on behalf of his estate and as dependants, claiming damages for his death as a result of the accident which they allege was caused by Scott Hoyle’s negligence.

Civil proceedings were issued in May 2012 alleging that Scott Hoyle was negligent in attempting to perform a loop when (a) he had no or insufficient training in aerobatic flying or spin recovery, and (b) at a dangerously low altitude such that there was insufficient airspace to recover from a spin.

A Defence was filed thereafter denying all allegations of negligence.

The AAIB investigated the accident and on 14 June 2012 published its report. The sole objective of the investigation under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 is the prevention of accidents, not to apportion blame or liability. Information in that report included that the aircraft “was seen by observers on the ground to pull up into a loop and during the manoeuvre it entered a spin from which it did not recover. The manoeuvre started at 1,500 feet agl (above ground level) and there was insufficient height for the pilot to recover from the subsequent spin”.

The Claimants sought to rely on the report and in response the appellants issued an application contesting the admissibility of it, seeking orders from the High Court that (1) those parts of the statements of case referring to the AAIB report be struck out, and (2) a declaration that the report was inadmissible as evidence in the civil proceedings.

The Claimants sought to rely on the report as evidence for the factual and expert evidence that it contains, in order to establish that 1) Mr Hoyle had no formal training in aerobatics, 2) the aircraft was observed pulling up into a loop, 3) the loop manoeuvre started at around 1,500 feet above ground level in the same geographic location as a loop performed by Mr Hoyle with his first passenger in the previous flight that day, 4) during the loop manoeuvre the aircraft entered into an unintentional spin, 5) Mr Hoyle did not have sufficient knowledge or training in the correct spin recovery for a Tiger Moth, and 6) there was insufficient height for Mr Hoyle to recover from the spin.

First Instance

The case was first heard before Mr Justice Leggatt (in February 2013) who dismissed the Defendant’s request on the following grounds:

Relevance

Mr Justice Leggatt commented that, “In the modern law of evidence relevance is the paramount consideration. The primary rule is that evidence is admissible only if it is relevant – that is, if it tends to prove or disprove, in the sense of making more or less probable, any fact in issue in the proceeding” (Phipson on Evidence (17th Edn) at paras 7.08-7.09; DPP v Kilbourne [1973] AC 729). In relation to those statements contained in the AAIB report, it contains a mixture of statements of fact, test results and statements of opinion all of which may be relevant to the facts in issue in the case.

Previous cases

During the proceedings, a number of aviation cases were cited in which AAIB reports had been used as evidence and indeed cited in judgments, without any point being taken on admissibility (see for instance Morison J’s comment in Bristow Helicopters Ltd v Sikorsky Aircraft Corp [2004] 2 Lloyd’s Rep. that “the report of the AAIB which is likely to feature largely in the litigation is to be published in England”). Although these previous cases were not seen as authority on the admissibility of an AAIB report, Mr Justice Leggatt considered that they illustrated “very well the considerable assistance which such a report may provide to a court which has to resolve a dispute about the cause of an aircraft accident and the extent to which courts would potentially be handicapped in seeking to establish the true facts if the law does not allow such reports to be relied on in the absence of agreement.”

Statutory Restriction

No statutory restriction existed in relation to the admissibility of the report in either English legislation or at European level.

Hearsay Evidence

The rule against Hearsay evidence in civil litigation was abolished by the Civil Evidence Act 1995. In the parties’ submissions no rule could be identified against the admission of anonymous hearsay as evidence where its maker could not be identified.

Opinion Evidence

The general rule is that insofar as an expert gives evidence of fact his evidence is as admissible as any other person. Where his evidence is evidence of opinion it is admissible because it is the product of a special expertise which the trial judge is unlikely to possess.

The AAIB were independent, extraneous to the proceedings and not instructed by either party. The inspectors were not going to be called to give evidence in the civil proceedings and some statements in their report were not attributed.

The court recognised that the AAIB is a body with very considerable expertise in determining the circumstances and causes of air accident and incidents and that gave the findings in the report a special value as the opinions of experts who were however entirely independent of the litigation.

The court saw that the AAIB report contained a mixture of both fact and opinion. The factual evidence would clearly be admissible. In relation to the opinion evidence, Mr Justice Leggatt found that “the opinion evidence in the report is also in principle admissible in so far as the opinions stated are those of qualified experts on subjects involving special expertise”.

Findings of Tribunals and Inquiries

The Defendant argued that there was substantial authority stemming from the rule in Hollington v Hewthorn [1943] 1 KB 587 that findings of tribunals and inquiries could not be admitted in civil proceedings. Despite the fact that Hollington v Hewthorn precludes reliance on criminal convictions in subsequent civil proceedings, a position now abolished by statute (s.11 of the Civil Evidence Act 1968), they argued that the rule still applies for other similar findings of fact in civil proceedings. In support of this they referred the court to the rule in Bird v Keep [1918] 2 KB 692 which established that findings by Coroner’s inquisition could not be admitted as evidence in later civil proceedings.

Since the Hollington v Hewthorn decision, there have been several cases concerning inquiries which tended to follow the general rule:

• Wreck inquiries (Waddle v Wallsend Shipping [1952] 2 Lloyds Rep 105)
• Three Rivers District Council v Governor of the Bank of England (No 3) [2003] 2 AC 1. This was an appeal to the House of Lords from a lower court’s decision to strike out a claim by former depositors of BCCI against the Bank of England on the ground that it had no realistic prospect of success. The Treasury and the Bank of England had previously instituted an independent inquiry to review the adequacy of its supervision of BCCI, presided over by Bingham LJ (as he then was). Although they disagreed as to whether regard could be had to the Bingham report in determining what allegations had a realistic chance of being proved, all the members of the Appellate Committee were in agreement that the findings and conclusions in the report would not be admissible at any trial of the action. Thus, Lord Steyn said (at p.238, para 5) that, although the report was “self-evidently an outstanding one produced by an eminent judge”, such use of the report was ruled out “by settled principles of law”. Other Law Lords expressed similar views.
• Calyon v Michailaidis [2009] UKPC 34 reliance was placed in proceedings in Gibraltar on a judgment of a Greek Court which had found that the claimants were the lawful owners of an art collection. The Gibraltar Court of Appeal held that the Greek judgment was conclusive of the question of ownership. On appeal to the Privy Council the board held, following Hollington v Hewthorn, that, far from being conclusive, the Greek judgment was not admissible as evidence at all.

Mr Justice Leggatt considered the history of the Hollington v Hewthorn rule at length commenting that he had done so as he felt it “necessary to identify its justification in order to determine how far the rule extends”.

It came down to the line between judicial findings and expert opinions and Mr Justice Leggatt was assisted by the decision in Glenfield Motor Spares Ltd v Smith [2011] EWHC 3130 (Ch) where an expert determination was admitted into evidence as the expert decision-maker was not obliged to act solely on the evidence adduced by the parties but was able to make use of his own expert knowledge when determining the rental value of a property. In a similar vein the experts at the AAIB do not act as judges whose role is to evaluate the evidence put before them but are able to take into account their own technical knowledge, and their own experience gained from other accident investigations. As such, the rule in Hollington v Hewthorn did not apply to an AAIB report.

Discretion

Mr Justice Leggatt agreed that the report did not fall within CPR Part 35 which deals with the duties of experts instructed in civil proceedings. The Claimants argued that non instructed expert reports were admissible at Common Law. That said, Mr Justice Leggatt agreed he had discretion under CPR part 32.1 to control evidence in civil proceedings. It was held that the AAIB report “is likely to be of significant evidential value” at the trial and that “the question of what weight should be given to the contents of the report is pre-eminently a matter for the trial judge”. Whilst Mr Justice Leggatt considered matters relating to policy and the impact on the effectiveness of the AAIB’s work he considered that the admission of the report as evidence in the proceedings would have no effect.

Mr Justice Leggatt held that the report was admissible and dismissed the Defendant’s application.

Appeal

The Defendants were given permission to appeal and appealed on the following grounds:

1. That Mr Justice Leggatt erred in rejecting the “Hollington v Hewthorn rule” on the basis that the authorities cited to him in support of the proposition involved “judicial findings” and thus the principle did not apply to the results of an AAIB investigation which is not such a finding;
2. The judge erred in holding that the anonymity of the authors, lack of credentials and non-compliance with CPR Part 35 were matters which go to weight rather than admissibility;
3. The judge was wrong in concluding that there was no reasonable basis for the suggestion that if the report were allowed to be used in evidence in litigation people may become less willing to participate with accident investigations;

In relation to the third ground 2 interveners were given permission to make submissions in support, namely the Department for Transport (on behalf of the AAIB) and the International Air Transport Association (“IATA”).

The Appeal was heard before Lady Justice Arden, Lord Justice Treacy and Lord Justice Christopher Clarke on 15 and 16 January 2014.

The Court of Appeal noted at the outset that the respondents were seeking to rely on the report “as evidence at any trial for the admissible factual and expert evidence which they say it contains. They do not suggest that it is in any sense conclusive; nor do they intend to rely on it to the exclusion of other factual or expert evidence.”

In relation to the first ground, the Court of Appeal referred to the Duchess of Kingston’s case (1776) 2 Sm L.C., 13th edn, 644 which first established the principle “that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third.” The Court of Appeal agreed with Mr Justice Leggatt that the AAIB report was not caught by the Hollington v Hewthorn rule distinguishing it from Three Rivers where Lord Bingham’s report was made in a judicial or quasi-judicial role.

Commenting on the second ground, the Court of Appeal cited Sunley v White (Surveyors & Estate Agents) Ltd [2003] EWCA Civ 240 in which it was held that a draft soil report issued by a company although the report was unsigned, provisional and did not carry the name or qualifications of the author was admissible in proceedings. Lord Justice Clark commented that it was “not well founded” to suggest that the Civil Evidence Acts and CPR Part 35 constitute a comprehensive code regulating the use of expert evidence. The term “expert” in Part 35 is restricted to “an expert who has been instructed to give or prepare evidence for the purpose of court proceedings” thus although the AAIB report included expert evidence it could not be expert evidence regulated by Part 35, because it had not been prepared for this purpose. Mr Justice Clarke went on to cite several authorities for permitting the use of non-instructed expert evidence and stated that “the Report was prima facie admissible and, since it did not fall within CPR 35, the claimant did not require the permission of the court to adduce it.”

Concerning the third ground, the Court of Appeal heard submissions from the Appellant and the 2 Interveners that if information contained in the report were allowed to be used as evidence in litigation this would deter people able to assist in the investigation of air accidents from doing so in future, which would impede the AAIB’s effectiveness and jeopardise aviation safety. Lord Justice Clark found that “For the judge to be denied sight of a report of this character – authoritative, independent, prompt and detailed – and for any experts called to be unable to refer to it in court, when it is freely available to the public, is difficult to justify”. Furthermore it was noted that judicial discretion needs to be taken into account along with the overriding objective of dealing with cases justly and at proportionate cost. The Court of Appeal found that not admitting the AAIB report would be contrary to this rule and that there was nothing in any statute to suggest that a balancing act should be made before admitting these reports. In addition to impose any relevant test on a party seeking to admit evidence would be unfair as the onus is on the party seeking to exclude it to persuade the court that it should take that course.

The Court of Appeal unanimously dismissed the Appeal in its entirety.

Comment

Although the use of AAIB reports has previously been fairly commonplace in civil proceedings of this sort there are no reported cases involving challenges to the admissibility of such evidence and so this is the first time that a court has had to consider the question of whether such reports can be relied upon as evidence.

This case makes it clear that it is now good law that the official accident report prepared by the AAIB is fully admissible in civil proceedings.

It also goes some way to clarifying the admissibility of expert opinion contained in third party documents (produced by independent persons, extraneous to the proceedings and not instructed by either party) where the maker of the document is not going to be called to give evidence and may in fact be anonymous. The court recognised that the AAIB is a body with very considerable expertise in determining the circumstances and causes of air accident and incidents and that gave the findings in the report a special value as the opinions of experts who were however entirely independent of the litigation.

It is clear that the weight to be placed on such evidence is a matter for the trial judge who should be trusted to determine what is fact and what is not, when he hears all other evidence and instructed expert opinion.

Above all, this decision can be seen as a legal victory for Claimants in UK aviation claims. It goes some way to re-establishing the equal footing between the parties which is part of the overriding objective. Many Claimants are at a disadvantage compared to insurance backed Defendants and have to prove all issues in the accident report would in all probability overtax bereaved families in these cases. What this judgment does is establish that Claimants do not now have to provide independent evidence of accident facts which can be expensive and very difficult.

You can find further information regarding our expertise, experience and team on our Aviation pages.

If you require assistance from our team, please contact us or alternatively request a call back from one of our lawyers by submitting this form.

Media contact: Lydia Buckingham, Senior Marketing Executive, +44 (0) 20 7822 8134, lbuckingham@stewartslaw.com