This decision of the Court of Appeal clarifies the scope of CPR Part 35 with regard to expert evidence. It also confirms the extent and applicability of the long standing rule in Hollington v Hewthorn [1943] KB 857 that factual findings made by other Courts and Tribunals are generally not admissible as evidence in subsequent civil proceedings as proof of facts in issue in those proceedings.

The Facts

The Defendant was the pilot of an aeroplane. The Claimants were the executors of a man killed in an aeroplane crash, which they alleged was caused by the Defendant’s negligence. As part of their case against the Defendant, the Claimants wished to rely on a report prepared by the Air Accident Investigation Branch (the “AAIB”). The Claimants sought to rely on the report as evidence at any trial for the factual and expert evidence they believed it to contain. However, the Defendant sought a declaration that the report was inadmissible opinion evidence. At first instance, it was held that the report was admissible despite containing both factual and opinion evidence. The Defendant appealed.

On appeal, it was for the Court to decide: (1) whether the report was admissible; (2) -ether it complied with the provisions of CPR 35; and (3) whether the first instance judge should have used his discretion to exclude the report.

The Decision

The Defendant argued that the report should not be admissible as evidence as it would breach the rule in Hollington v Hewthorn [1943] 2 All ER 35, in that factual findings made by other Courts and Tribunals are not admissible as evidence in separate civil proceedings as proof of facts in issue in those proceedings. The Defendant sought to argue that the rule was not confined to judicial decisions, but extended to reports such as the AAIB report. The Court of Appeal disagreed and held the rule in Hollington v Hewthorn recognised that different considerations applied to expert and scientific evidence such that experts are entitled to give factual evidence as much as any other person. Additionally, it was held that experts are entitled to give opinion evidence because it was the product of a special expertise which the trial judge was unlikely to possess. In any event it was held that insofar as an expert’s opinion is inadmissible, this was a matter of weight to be given to the evidence rather than its admissibility. Interestingly, it was also held that “the bar to be surmounted in order to count as an expert is not particularly high”.

The Defendant also sought to argue that the AAIB report did not comply with CPR Part 35 and that CPR Part 35 was a “comprehensive code regulating the use of expert evidence”. The Court of Appeal disagreed, as the AAIB report did not fall within the confines of CPR 35. The Court held that CPR Part 35 only applies to an expert “who has been instructed to give or prepare expert evidence for the purpose of proceedings”. It was said that “the purpose of CPR Part 35 is to regulate the evidence of experts instructed by the parties, to ensure that they act as experts, and to regulate the use and control of their reports”. Accordingly, the Court held that the AAIB report did not fall within CPR Part 35 on the basis that the AAIB was not instructed by and was independent of the parties. Importantly, it was said that CPR 35 is not a comprehensive and exclusive code and the Courts have in practice received expert evidence outside of the requirements of CPR Part 35.

Finally, the Defendant argued that even if the report was admissible the judge should have exercised his discretion to exclude the report as admissible on the basis that, first, it was an unsafe piece of evidence, and second, that it would deter people from assisting in the investigation of accidents if they thought their evidence could be used in litigation. The Court found both of these submissions to be without merit.

Accordingly, the Court of Appeal upheld the first instance decision and concluded the report was prima facie admissible. Additionally, because the report did not fall within the confines of CPR 35, the permission of the Court was not needed to adduce it.

Commentary

In the post Jackson world this case is of use to litigants as it is a reminder that expert evidence outside of the strict requirements of CPR Part 35 is admissible. This is useful in cases where it may be disproportionate to use CPR experts. The case also highlights the Court’s reluctance not to admit expert evidence just because it contains reference to opinion. Rather than being inadmissible it would appear that the Court will consider the weight that it should carry as being evidence of an issue in dispute at trial.

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