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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hoyle v Rogers & Anor  EWCA Civ 257 (13 March 2014)
Cite as:  EWCA Civ 257,  1 QB 265,  1 CLC 316,  3 All ER 550,  CP Rep 30,  3 WLR 148
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE LEGGATT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TREACY
LORD JUSTICE CHRISTOPHER CLARKE
| Scott Hoyle
|- and -
|Julia Mary Rogers
Jade Nicola Lucinda Rogers
Secretary of State for Transport
|International Air Transport Association
Michael Crane QC and John Kimbell (instructed by Stewarts Law LLP) for the Respondent
Malcolm Sheehan (instructed by the Treasury Solicitor) for the 1st Intervener
Akhil Shah QC (instructed by Holman Fenwick Willan) for the 2nd Intervener
Hearing date: 15th January 2014
Crown Copyright ©
LORD JUSTICE CHRISTOPHER CLARKE:
The AAIB and the Regulations
"satisfied that the interests of justice in the judicial proceedings or circumstances in question outweigh any adverse domestic and international impact which disclosure may have on the investigation into the accident or incident to which the record relates or any future accident or incident investigation undertaken in the United Kingdom": Regulation 18 (2) and (4).
"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 and there was insufficient height for the pilot to recover from the subsequent spin".
The nature of the Report
The rule in Hollington v Hewthorn
"What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers. There are some exceptions to this general rule, founded upon particular reasons, but, not being applicable to the present subject, it is unnecessary to state them."
"It frequently happens that a bystander has a complete and full view of an accident. It is beyond question that, while he may inform the court of everything that he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but, in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not. The well recognized exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial. So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant."
"ought not to be admitted as some evidence of a fact which must have been found owing mainly to the impossibility of determining what weight should be given to it without retrying the former case."
"..the essential reasoning is compelling: unless the second court goes into the facts for itself, it cannot actually tell what weight it should properly attach to the previous decision. Which means that the previous decision itself cannot be relied upon."
" to treat this as a question of weight rather than admissibility, particularly since there is no clear point at which an expert's specialised knowledge and experience ceases to inform and give some added value to the expert's opinions. It is a matter of degree. The more the opinions of the expert are based on special knowledge, the greater (other things being equal) the weight to be accorded to those opinions".
"Such an exercise is unnecessary and disproportionate especially when such statements are intertwined with others which reflect genuine expertise and there is no clear dividing line between them. In such circumstances, the proper course is for the whole document to be before the court and for the judge at trial to take account of the report only to the extent that it reflects expertise and to disregard it in so far as it does not. As Thomas LJ trenchantly observed in Secretary of State for Business Enterprise and Regulatory Reform v Aaron  EWCA Civ 1146 at para 39:
"It is my experience that many experts report views on matters on which it is for the court to make its decision and not for an expert to express a view. No modern or sensible management of a case requires putting the parties to the expense of excision; a judge simply ignores that which is inadmissible.""
Expert evidence under the Civil Evidence Acts and the Civil Procedure Rules
"(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section "relevant matter" includes an issue in the proceedings in question."
"Duty to restrict expert evidence
Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.
Interpretation and definitions
(1) A reference to an 'expert' in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.
Experts overriding duty to the court
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
Court's power to restrict expert evidence
(1) No party may call an expert or put in evidence an expert's report without the court's permission.
General requirement for expert evidence to be given in a written report
(1) Expert evidence is to be given in a written report unless the court directs otherwise.
Contents of report
(1) An expert's report must comply with the requirements set out in Practice Direction 35.
(2) At the end of an expert's report there must be a statement that the expert understands and has complied with their duty to the court.
(3) The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
"even at common law the opinions of skilled witnesses were admissible wherever the subject is one upon which competency to form an opinion can only be acquired by special study".
In 1782 there could be no question of hearsay expert opinion: but the law has moved on.
"the AAIB Report is an anonymised document so that the authors of the statements contained in the report not only cannot be questioned but cannot even be identified. In particular, the hearsay reports of the accounts of witnesses of fact summarised in the report are: (a) not verbatim; (b) not attributed to named individuals; and (c) not signed with a statement of truth. Opinions given in the report are: (a) not attributed to any individual, hence there are no credentials; and (b) not given in accordance with Part 35. Further, the findings contained in the AAIB Report are: (a) not attributed to any individual within the AAIB; and (b) based on an exercise in evaluating and discarding evidence which is not disclosed and where any unused material is not disclosed."
New evidence - Admissibility
New evidence content
"Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety."
New evidence - submissions
LORD JUSTICE TREACY
LADY JUSTICE ARDEN