“You might very well think that…”: Opinion Evidence in Regulatory Proceedings

Anthony James considers the problems caused by the particular nature of regulatory cases which seem to attract opinion evidence.

In regulatory proceedings, charges are often drafted in a “narrative style” i.e. seeking to catch specific conduct disclosed by the evidence rather than straightjacketing it into a predetermined list of offences. Practitioners therefore often encounter charges based on specific allegations made by witnesses for the regulator. Frequently, these allegations are based on opinion evidence. This article seeks to outline the general rules and relevant case law before providing some practical tips for practitioners when encountering such evidence.

The General Rule

The general rule in legal proceedings of any sort is that witnesses may give evidence of facts within their direct knowledge but they may not express an opinion.

There are two broad exceptions to this rule:

a) Evidence provided by expert witnesses; and
b) Evidence provided by non-expert witnesses who, in describing facts, express an opinion on matters within the competence of lay people generally.

As regards the latter, section 3(2) Civil Evidence Act 1972 provides 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 “.

Obvious examples of such evidence would be a witness giving evidence that: “ visibility was poor” or “he overtook me at high speed”.

Case Law Exceptions

These principles are however diluted somewhat by several leading cases on the subject.

DN v London Borough of Greenwich [2004] EWCA Civ 1659

This case has an important context. Although the defendant to the claim was the London Borough of Greenwich, the matter in issue was whether a school educational psychologist had been negligent in preparing a report on DN’s educational needs aged 10 and whether DN would therefore have received an education more suited to his needs. At first instance, it was held that the psychologist could not give opinion evidence as he was a witness of fact.

On appeal, it was held at [25] et seq that a defendant is permitted to give evidence which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably expected of him and to do so by reference to his knowledge and expertise in the particular field. That this evidence may lack the objectivity of an independent expert goes to its cogency or weight, not its admissibility.

This confirms the principle that a defendant or registrant charged in regulatory proceedings is able to offer their opinion on why their conduct did or did not fall below the standards expected.

Multiplex Constructions (UK) Ltd v Cleveland Bridge Ltd [2008] EWHC 2220 (TCC)

Here, the claimant company (“M”) sued the defendant company, the Cleveland Group (“CG”) in relation to the construction of the new Wembley Stadium. M was the main contractor and CH the steelwork sub-contractor. It was the admissibility of the evidence of Mr David Taylor that was in issue. He was the principal engineer employed by Dorman Long Technology Ltd, half-owned by CG. Taylor worked on the project between February 2003 and October 2005.

Accordingly, at [666], Jackson J held:

I shall therefore treat Mr Taylor as a factual witness who (a) is possessed of considerable engineering expertise and (b) has personal knowledge of the roof design and erection engineering decisions which were made in the period February 2004 to October 2005 [emphasis added].

The ratio of the decision is perhaps best illustrated by the following paragraph:

[672] Having regard to the guidance of the Court of Appeal and the established practice in TCC cases, I conclude that in construction litigation an engineer who is giving factual evidence may also proffer (a) statements of opinion which are reasonably related to the facts within his knowledge and (b) relevant comments based upon his own experience. For example, an engineer after describing the foundation system which he designed may (and in practice frequently does) go on to explain why he believes that this was appropriate to the known ground conditions. Or an engineer brought in by a claimant to design remedial works (which are subsequently challenged as excessive) may refer to his experience of rectifying comparable building failures in the past. For example, such evidence may be given in cases about concrete failure through ASR (a world wide problem).

This judgment appears to be a slight expansion on the principle from DN. There are situations where witnesses, other than a defendant, who do possess relevant experience (as many do in regulatory proceedings) can give opinion evidence. However, that is confined to the situation when they are giving evidence about facts reasonably related to their own knowledge or are making relevant comments based upon their own experience. A defendant or registrant necessarily often falls in that bracket.  The same would apply to a colleague who witnessed a certain procedure or who was the next treating clinician (causation concerns put to one side) as they would have knowledge of the facts.

What is not admissible, it would seem, is for a witness to be asked by a regulator to proffer an opinion on a specific matter which they were not themselves a party to. The correct avenue for the regulator in that case would be to formally instruct an expert witness under CPR Part 35.

Hoyle v Rogers [2014] EWCA Civ 257

This is perhaps the most useful case for regulators.

R were the executors of a man who had died when an aircraft piloted by H had crashed. They alleged negligence on H’s part and sought to rely on the report from the Air Accident Investigation Branch of the Department of Transport.

On expert evidence generally, it was noted by the Court of Appeal at [43] and [51] that:

[43] The bar to be surmounted in order to count as an expert is not particularly high, the degree of expertise going largely to the weight to be given to the evidence rather than its admissibility.

[51] It is open to an expert, that is to say someone who has the appropriate special expertise, to express an opinion based on the facts as he understands, or assumes, them to be, if and insofar as his conclusion is informed by, or a reflection of, that expertise. This includes matters such as the causation of an accident. The AAIB appears to me, as it did to the judge, to be a body with the requisite expertise, charged as it is in the Regulations and the EC Regulations with responsibility for investigating air accidents and having considerable qualified expertise and experience in doing so.

One of the key arguments put forward by the appellant at [61] was that the “Civil Evidence Acts and CPR 35 constitute a comprehensive code regulating the use of expert evidence. Under it a party is not entitled to call an expert or put in an expert report without the permission of the Court and, unless the Court otherwise directs, the report must comply with the requirement of the Practice Direction.”

This submission was rejected by the Court at [62] which held that the report did not qualify under these rules on the basis that “[t]he AAIB was not instructed by, and is wholly independent of, any of the parties.”

At first blush, this judgment appears to support regulators who are often in the position of arguing that opinion evidence of other practitioners is admissible. Particularly, the dicta at [43] and [51]. Regulators will not doubt argue that this judgment advocates for a position whereby evidence should be assumed to be admissible, giving decision-makers discretion as to the weight to be attributed to it. The High Court has since of course taken a rather contrary view to this on the matter of hearsay evidence (El Karout v NMC [2019] EWHC 28 (Admin)), where admissibility is quite distinct from weight.

Hoyle v Rogers is also directly applicable to independent reports of separate bodies such as those prepared by the Care and Quality Commission and indeed earlier trust investigations.

However, defence practitioners will almost certainly rely on the fact that this judgment should be seen in the context of the nature of the report at the centre of the case. A broad-brush reading of paragraphs [43] and [51] would seem to suggest that witnesses for the regulator with any degree of expertise would be able to express opinion on facts if informed by their expertise. This would seem to run a coach and horses through CPR Part 35 and there does remain a place for experts instructed by parties. Witnesses for the regulator can clearly be distinguished from the AAIB; they are not wholly independent of the parties. The dicta at [43] and [51] cannot be seen in isolation. This was a judgment expressly dealing with an independent report, rather than opinion evidence of witnesses being called to give evidence.

Mondial Assistance (UK) Ltd v Bridgewater Properties Ltd [2016] EWHC Ch B38

This case seems to support the more limited reading of Hoyle v Rogers as it draws a “sharp divide” [22] between independent evidence not prepared for the purposes of proceedings and evidence regulated by CPR Part 35 (see [19]). This is summarised at [26]:

[26]… the effect of the CPR rules is to create a distinction between (1) an expert who advises a party on a specialist or technical matter within his/her expertise at any stage of a problem, dispute or claim, and (2), an expert witness who is instructed by a party during proceedings usually to prepare a written report for the court. That seems to me to be a real and practical distinction and, on the face of it, this report is of the former type and not of the latter.

It is quite clear from the above that the AAIB report from Hoyle v Rogers falls into the first category. However, evidence from witnesses for the regulator does not fall within that dichotomy. It is closer to that envisaged by Part 35 but as Multiplex makes clear, certain witnesses can give opinion evidence that is not regulated by Part 35. Therefore, it appears that the most applicable test when one is considering opinion evidence from witnesses called by the regulator is that laid down in Multiplex.

Practical Considerations

For both sides, it is important to identify the admissibility of evidence at the earliest opportunity. The lack of certainty in the legal position is however likely to lead to legal argument. There is on the one hand a broad-brush reading of Hoyle v Rogers and on the other a more narrow application of Multiplex.

For the regulator, if there are charges based on opinion evidence of a witness, it is important to determine whether it is the sort of evidence that is admissible per Multiplex. If not, it may well be it is then possible to seek an expert witness or another witness who is able to give admissible opinion evidence i.e. related to their own knowledge.

For the defence, if issues of opinion evidence arise, the first step would be to suggest it is redacted from the draft bundles. If such redaction is not agreed, the matter can appropriately be dealt with at a preliminary meeting. This allows for the matter to be dealt with before the final panel has sight of the evidence and ultimately saves considerable time at the final hearing.

Even if the evidence is deemed admissible, there is clear scope to argue about the weight to be attached to the opinion. Careful cross-examination of witnesses regarding both their expertise and knowledge of the facts relevant to the allegation will be required.

Ultimately, for both regulators and defence practitioners, it is vital to bear in mind that, on certain matters, witnesses might very well think that; but they cannot possibly comment.