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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Rogers & Anor v Hoyle [2013] EWHC 1409 (QB) (23 May 2013) URL: https://www.bailii.org/ew/cases/EWHC/QB/2013/1409.html Cite as: [2013] EWHC 1409 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) Julia Mary Rogers (2) Jade Nicola Lucinda Rogers |
Claimants |
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- and - |
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Mr Scott Hoyle |
Defendant |
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Timothy Marland (instructed by Clyde & Co.) for the Defendant/Applicant
Hearing date: 21/02/2013
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Crown Copyright ©
Mr Justice Leggatt :
Introduction
The Claim
The AAIB
The Regulations Governing Air Accident Investigations
"(a) have free access to the site of the accident or incident as well as to the aircraft, its contents or its wreckage;
(b) ensure an immediate listing of evidence and controlled removal of debris, or components for examination or analysis purposes;
(c) have immediate access to and use of the contents of the flight recorders and any other recordings;
(d) have access to the results of examination of the bodies of victims or of tests made on samples taken from the bodies of victims;
(e) have immediate access to the results of examinations of the people involved in the operation of the aircraft or of tests made on samples taken from such people;
(f) examine witnesses; and
(g) have free access to any relevant information or records held by the owner, the operator or the manufacturer of the aircraft and by the authorities responsible for civil aviation or airport operation."
The AAIB Report
The Claimants' Reliance on the AAIB Report
"For the avoidance of doubt, the claimants will not contend that the court is in any way 'bound' by the findings of the AAIB. The claimants simply rely on the AAIB Report for the admissible factual evidence and the admissible expert evidence which it contains."
The remainder of the reply contains further references to the AAIB Report including several quotations from it.
The Defendant's Application
The Defendant's Arguments
The Claimants' Arguments
Relevance
"nowadays, it is relevance ... that is the main consideration, and, generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded."
Relevance of the AAIB Report
"The rear fuselage, which was intact, was aligned at approximately 25° to the ground marks made by the spinner and cowling which gave strong evidence that there was rotation about a vertical axis with the aircraft rotating to the right when the aircraft struck the ground. This direction of rotation was further corroborated by ground marks made by the tail skid dragging to the left (ie in the direction of the aircraft nose to the right)."
It can be seen that this passage combines statements reporting the location of the ground marks and wreckage which the inspectors observed with inferences drawn from those observations. Many similar examples could be given.
Use of AAIB Reports in Previous Cases
No Statutory Restriction
Hearsay Evidence
"(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
... [and]
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; ..."
Opinion Evidence
"It is an opinion which, if rightly formed, could only be drawn from the same premises from which the Court and jury were to determine the cause; and therefore it is improper and irrelevant in the mouth of a witness."
The Status of the AAIB Report
The Argument from Authority
Findings at Inquests
"I am of opinion that the result of an investigation conducted by the coroner, however valuable for certain purposes, cannot in law be treated as prima facie evidence against any person of the facts found by the jury."
Marine Accident Inquiries
"Frequent references have been made during the course of the trial before me to the evidence given at the Inquiry. The report has not been tendered and I have not been told what conclusion was reached about the cause of the loss. I think this is strictly correct; the report is not admissible and the parties are entitled to have the matter considered and determined afresh."
"... the competent authorities might consider whether the useful purposes that Wreck Inquiries serve would not be increased if the report was made available to any court which had to determine the cause of the loss. It is not necessary that the findings of fact made in the report should be treated as binding. The opinion of the Commissioner based on the facts he finds has at least as high a value as that of an expert based on the facts which he assumes to be proved; and it has the advantage of being quite independent of either side."
"What is needed is a statutory provision enabling a judge hearing the [later] action to make such evidential use of the report as a whole as he thinks fit."
The BCCI Inquiry
Hollington v Hewthorn
"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."
Subsequent History of Hollington v Hewthorn
"Rationalise it how one will, the decision in this case offends one's sense of justice. ... It is not easy to escape the implication in the rule in Hollington v Hewthorn that, in the estimation of lawyers, a conviction by a criminal court is as likely to be wrong as right. It is not, of course, spelt out in those terms in the judgment of the Court of Appeal, although in so far as their decision was based mainly upon the ground that the opinion of the criminal court as to the defendant driver's guilt was as irrelevant as that of a bystander who witnessed the accident, the gap between the implicit and the explicit was a narrow one. It is in a sense true that a finding by any court that a person was culpable or not culpable of a particular criminal offence or civil wrong is an expression of opinion by the court. But it is of a different character from an expression of opinion by a private individual."
"We approach the rule in Hollington v Hewthorn from the premise ... that any material which has probative value upon any question in issue in a civil action should be admissible in evidence unless there are good reasons for excluding it. Our further premise is that any decision of an English court upon an issue which it has a duty to determine is more likely than not to have been reached according to law and to be right rather than wrong. It may therefore constitute material of some probative value if the self-same issue arises in subsequent legal proceedings."
"Beyond doubt [Hollington v Hewthorn] was wrongly decided. It was done in ignorance of previous authorities. It was done per incuriam. If it were necessary to depart from it today, I would do so without hesitation."
On appeal to the House of Lords in the same case Lord Diplock (with whose speech the other members of the Appellate Committee agreed) echoed this view, saying that Hollington v Hewthorn "is generally considered to have been wrongly decided:" see Hunter v Chief Constable of the West Midlands [1982] 1 AC 529, 543.
The Justification for the Rule
"merely amounted to the opinion of the coroner's jury as to the cause of death upon the evidence adduced before them. This is irrelevant to the issue involved in the present proceedings, and the cause of death has to be determined for the purpose of this arbitration upon the evidence adduced before the county court judge."
Similarly, Bankes LJ said (at p.704):
"In my opinion the finding of the coroner's jury as to the cause of death was not relevant to any issue which the learned county court judge had to determine. He had to decide upon the evidence before him what the cause of death was. It cannot be relevant to that inquiry that he should be informed what a coroner's jury thought of the matter upon materials which were before them but which were not and could not be placed before the county court judge."
"It is admitted that the conviction is in no sense an estoppel, but only evidence to which the court or a jury can attach such weight as they think proper, but it is obvious that once the defendant challenges the propriety of the conviction the court, on the subsequent trial, would have to retry the criminal case to find out what weight ought to be attached to the result.
Goddard LJ returned to this point when stating that the same rule as renders criminal convictions inadmissible in later proceedings also applies to judgments of civil courts. He said (at p.596):
"If the judgment is not conclusive we have already given our reasons for holding that it ought not to be admitted as 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."
"As we have already pointed out, in civil proceedings the parties have complete liberty of choice as to how to conduct their respective cases and what material to place before the court. The thoroughness with which their case is prepared may depend upon the amount at stake in the action. We do not think it just that a party to the second action who was not a party to the first should be prejudiced by the way the party to the first action conducted his own case, or that a party to both actions, whose case was inadequately prepared or presented in the first action, should not be allowed to avail himself of the opportunity to improve upon it in the second."
The Scope of the Rule
"Mr. Clark is no doubt an expert valuer but I do not think he gave his award in that capacity. An arbitrator is obliged to act solely on the evidence adduced by the parties. Mr. Clark may, by reason of his expertise, have known about matters which cast doubt on points which went unchallenged in the arbitration. If he had been acting as an expert he would have been able to take this knowledge into account. As an arbitrator he would not."
Conclusion as to the AAIB Findings
"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."
Discretion
"(1) The court may control the evidence by giving directions as to
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible."
It is clear from r.32.1(2) that this rule gives the court a discretion to exclude the AAIB Report in whole or in part even though the report is relevant and admissible.
The Claimants' Statements of Case
Conclusion