CIVIL EVIDENCE AND THE RULE IN HOLLINGTON -v- HEWTHORN: FACTUAL FINDINGS BY ONE JUDGE CANNOT BIND ANOTHER JUDGE IN DIFFERENT PROCEEDINGS

The judgment of HHJ Paul Matthews in Crypto Open Patent Alliance v Wright [2021] EWHC 3440 (Ch) provides enough material for half a dozen seminars on civil evidence.  Here we look at one aspect of it, the rule in Hollington -v- Hewthorn.  The Hollington case is interesting in that the decision itself was, effectively, overruled by statute. However the principles it set out still remain as the common law position and still have some practical relevance.

“The fact-finding of professional, independent and impartial judges operating in sophisticated civil procedure systems is treated as no more weighty than the opinions of an uninformed layman.”

THE CASE

The claimant brought an action for a declaration that the defendant is not the author of, or owned copyright in, the Bitcoin White Paper.

THE APPLICATIONS

The defendant made an application which included an application that findings of fact made in litigation he was a party to in America was not admissible in the current action.

THE JUDGMENT ON THIS ISSUE

The judge considered the case law on this topic, and the statutory exceptions (none of which applied here).

The rule in Hollington v Hewthorn

1. 1. In Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587, CA, the plaintiff sought to rely in civil proceedings for negligence upon the defendant driver’s criminal conviction for careless driving as evidence of his negligence. The Court of Appeal (Lord Greene MR, Goddard and Du Parcq LJJ) held that evidence of the conviction was inadmissible. Giving the judgment of the court, Goddard LJ (as he then was) said, at 596-97:

“A judgment obtained by A against B ought not to be evidence against C, for, in the words of the Chief Justice in the Duchess of Kingston’s Case (1776) 2 Sm LC 13th ed. 644, ‘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 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.’ This is true, not only of convictions, but also of judgments in civil actions. If given between the same parties they are conclusive, but not against anyone who was not a party. If the judgment is not conclusive we have already given our reasons for holding that it 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. A judgment, however, is conclusive as against all persons of the existence of the state of things which it actually affects when the existence of that state is a fact in issue. Thus, if A sues B, alleging that owing to B’s negligence he has been held liable to pay xl. to C, the judgment obtained by C is conclusive as to the amount of damages that A has had to pay C, but it is not evidence that B was negligent: see Green v. New River Co (1792) 4 Term Rep. 589, and B can show, if he can, that the amount recovered was not the true measure of damage.”

Land Securities plc v Westminster City Council

1. 1. I will refer to some of the recent cases in which the rule has been discussed. The first of those cited to me is Land Securities plc v Westminster City Council [1993] 1 WLR 286. In that case, an arbitrator in a rent review arbitration admitted evidence of an arbitration award in another such arbitration between different parties in relation to similar premises. Hoffmann J (as he then was) held that such evidence was inadmissible. He said (at 288F-H):

“In principle the judgment, verdict or award of another tribunal is not admissible evidence to prove a fact in issue or a fact relevant to the issue in other proceedings between different parties. The leading authority for that proposition is Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587, in which a criminal conviction for careless driving was held inadmissible as evidence of negligence in a subsequent civil action. There has been criticism of this decision, and important exceptions have since been created by statute, notably in the Civil Evidence Act 1968, but none of them would apply here. In Hunter v. Chief Constable of the West Midlands Police [1982] AC 529, 543, Lord Diplock said that Hollington v. F. Hewthorn & Co. Ltd. was ‘generally considered to have been wrongly decided.’ He did not elaborate on this remark, which in any case was not necessary for the decision. In Savings & Investment Bank Ltd. v. Gasco Investments (Netherlands) B. V. [1984] 1 W.L.R. 271, 280, Peter Gibson J. said that Hollington v. F. Hewthorn J_J & Co. Ltd. still represented the common law.”

1. 1. Counsel then argued that the arbitrator (a rent review surveyor) was himself an expert and could give expert opinion evidence. As to this, the judge said (at 289D-F):

“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. His position, in my judgment, was no different from that of a judge determining the rent of a new lease of premises under the Landlord and Tenant Act 1954. The admissibility of his judgment as evidence of the value of the premises in proceedings between different parties cannot depend on whether he happens to have expertise in valuation.”

1. 1. Finally, Hoffmann J also pointed out (at 289F-G) that a further basis for the rule in Hollington v Hewthorn was that the evidence sought to be adduced was hearsay:

“The arbitrator’s award, expert or not, is an assertion as to the value of a comparable property made by a person not called as a witness and used to prove the truth of that assertion.”

Of course, since the important reforms wrought by the Civil Evidence Acts 1972 and 1995, that is no longer a substantive objection, and I need not consider it further now.

Secretary of State for Trade and Industry v Bairstow

1. 1. The next case that I would like to refer to is Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321. In that case, the Secretary of State brought company director disqualification proceedings against the appellant, and sought to rely on findings by a judge (appealed unsuccessfully to the Court of Appeal) in earlier wrongful dismissal proceedings brought by the appellant against the company in respect of which the disqualification proceedings were now brought. At first instance the judge made an order permitting such reliance, and the appellant now appealed, successfully, against that order.

1. 1. Sir Andrew Morritt V-C (with whom Potter and Hale LJJ agreed) said:

“26. I am unable to accept the distinction on which counsel for the Secretary of State relies. Even if Hollington v F. Hewthorn & Co. Ltd could originally have been confined to cases in which the earlier decision was that of a court exercising a criminal jurisdiction, it has stood for over 60 years as establishing a much broader proposition. There was no criminal prosecution in any of the other cases to which I have referred except Hui Chi-Ming v R. The submission of counsel is inconsistent with the judicial statements made in each of the other cases to which I have referred, in particular of Lords Steyn, Hope of Craighead and Hutton in Three Rivers District Council v Bank of England. It is true that in most of them the decision in question was not that of a court, but of inspectors appointed under the Companies Act, an arbitrator or extra-statutory investigators. But that feature was not the basis of the decision in any of those cases and cannot account for the dictum of Balcombe LJ in Symphony Group plc v Hodgson or the decision of Keene J in Hawaz v The Thomas Cook Group Ltd.

27. Accordingly I would accept the submission of counsel for Mr Bairstow that the factual findings and conclusions of Nelson J in the earlier proceedings are not admissible as evidence of the facts so found in these proceedings. Counsel for the Secretary of State accepted that he could not rely on any statutory or common law exception to render those conclusions admissible for the purpose of proving those facts. … Counsel for the Secretary of State also accepted that if the factual conclusions of Nelson J are inadmissible there is nothing in the Civil Procedure Rules, in particular CPR Rule 32.1, to alter the position.”

Rogers v Hoyle

1. 1. Rogers v Hoyle [2015] 1 QB 265, CA, was the case of a claim in negligence brought by the estate of a passenger in an aeroplane who was killed when the aeroplane crashed. The defendant was the pilot of the aircraft. The question arose whether the report of the Air Accident Investigation Branch of the Department of Transport into the aeroplane crash was admissible at the trial. The judge, Leggatt J (as he then was), held that it should be admitted. The pilot appealed, arguing that the rule in Hollington v Hewthorn applied, and that the report was inadmissible. The appeal failed.

1. 1. Christopher Clarke LJ, with whom Arden and Treacy LJJ agreed) said:

“As the judge rightly recognised the foundation on which the rule [in Hollington v Hewthorn] must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it (‘the trial judge’), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.”

It will be seen that this reasoning tracks that of Hoffmann J in the Land Securities case.

Ward v Savill

1. 1. The final case to which I wish to refer on this point is Ward v Savill [2021] EWCA Civ 1378, a very recent decision of the Court of Appeal. Here, the claimants sought to trace money that they invested in a scheme that turned out to be a fraud into a property in the sole name of the defendant. The defendant resisted this claim. The claimants sought to rely on declarations obtained in earlier civil proceedings between the claimants and the fraudsters (one of whom was the defendant’s husband). At first instance the deputy judge, Robin Vos, dismissed their application, and the claimants appealed, unsuccessfully.

1. 1. The Court of Appeal considered a large legal canvas, including the effect of judgments in rem, with which I am not concerned. But it also concerned the rule in Hollington v Hewthorn. On this question Sir Julian Flaux C (with whom Elisabeth Laing and Warby LJJ agreed) said:

“85. In Calyon [v Michailaidis [2009] UKPC 34] Mr Steinfeld QC, who also appeared for the claimants in that case, sought to persuade the Privy Council to depart from the established principles underlying Hollington v Hewthorn, but they declined to do so. In [28] of the judgment, the Privy Council recognised that, whilst the actual decision in Hollington v Hewthorn had been criticised, it continued to embody the common law as to the effect of previous decisions. It was in that context that they referred at [30] to [31] to the Report of the Law Reform Committee and concluded, not just that the reasoning of the Court of Appeal in Hollington v Hewthorn on this aspect of the law was compelling, but that it was significant that, in passing the Civil Evidence Act 1968, Parliament made no change to this aspect of the law. In other words, the rule in Hollington v Hewthorn represents a well-established principle of law which this Court should follow.”

Civil Evidence Act 1968

1. 1. I should also refer briefly to the reforms made to the rule by the Civil Evidence Act 1968, ss 11-13. Section 11 provides that the fact of conviction of any criminal offence in a UK court, or of a “service offence” anywhere, is admissible in any subsequent civil proceedings in England and Wales to prove the commission of that offence, and if such fact of conviction is proved, the burden will lie on the defendant in the criminal proceedings to prove that he or she did not commit the offence. In essence this section reverses the actual decision in Hollington v Hewthorn, without abolishing the underlying rule. However, the Act goes on to deal with two other specific cases.

1. 1. Section 12 is concerned with certain family proceedings. It provides that in civil proceedings in England and Wales findings of (i) adultery in earlier matrimonial proceedings, and (ii) findings of paternity in earlier UK affiliation proceedings or other relevant proceedings in England and Wales, are admissible evidence of such adultery or paternity (as the case may be) in the later proceedings. Again, if the fact of such finding is proved, the burden will lie on the relevant party in the later proceedings to prove that that finding was wrong.

1. 1. Finally, there is a conclusive reversal of Hollington v Hewthorn in certain defamation cases. Section 13 provides that, in proceedings for defamation where the allegation is that the claimant committed a criminal offence, evidence that the claimant was convicted of that offence in a UK court (or, if it is a service offence, anywhere) shall be admissible in the defamation proceedings, and the conviction if proved will be conclusive evidence of commission of the offence (thus going further in defamation cases then section 11 does generally).

Commentary

1. 1. It will be seen that the so-called rule is, in modern times at least, simply an application of the common law rule that non-expert opinion evidence is inadmissible in English law, subject to limited statutory exceptions. It would have been possible for English law to develop in a different way. For example, the courts could have held that, since a judge is an expert in weighing evidence and finding facts according to a procedural system designed to be fair, and must have received evidence to satisfy him or her of the fact concerned, that judge’s opinion had some probative value that could at least be taken into account in the second proceedings. This would stand in stark contrast to the opinion evidence of an uninformed layman.

1. 1. Obviously, even where the judge’s opinion was treated as admissible, there would still potentially be arguments about the weight to be given to such evidence, for example because the witnesses available and the issues at stake in the first proceedings might well be very different from those on the second. No doubt this was what Goddard LJ meant in Hollington v Hewthorn when he referred to “the impossibility of determining what weight should be given to it without retrying the former case”. But it is clear that some such idea as this lay behind the decision of Parliament in 1968 to reverse the effect of the rule in three specific areas where United Kingdom or English courts had reached a decision on the same issue, albeit between different parties.

1. 1. Yet it is also clear that the English courts did not take this alternative path, and the decision of the Court of Appeal in Rogers v Hoyle shows exactly where the line has been drawn. The fact-finding of professional, independent and impartial judges operating in sophisticated civil procedure systems is treated as no more weighty than the opinions of an uninformed layman. It is also clear that it is not now open to the English courts to change course, at least beneath the level of the Supreme Court. Indeed, given the merely partial legislative intervention of 1968, without altering the remainder of the common law rule, and as Sir Julian Flaux C hinted in Ward v Savill, it may now not even be open to the Supreme Court to do so either.

1. One argument for leaving matters as they are may be that reversing the rule would lead to even more satellite litigation about the circumstances in which the earlier decision was come to, and how far it could properly be helpful in the later proceedings, and that there is a value for those involved in litigation as a whole in preventing such further disputes from complicating existing proceedings and making them even slower and more expensive. Of course, looking at the matter from where I sit, at first instance, it makes no difference. The rule is binding upon me, none of the statutory exceptions applies, and so I will apply it.

THE PRACTICAL OUTCOME IN THE CURRENT CASE

The judge refused to make the order sought by the defendant.

Evidence exclusion order

1. 1. I have already set out earlier in this judgment the terms of the evidence exclusion order that the defendant seeks. Ordinarily, questions about the admissibility of evidence are determined at trial, by the trial judge, or at least at an application heard close to the trial, once the pleadings are closed, disclosure has taken place and witness statements and any expert reports have been served. Until all those things have occurred, it will not be known precisely what evidence will be needed to prove what allegations. Here the pleadings are closed, but not yet in final form, there has been no CMC, the scope of disclosure is disputed and accordingly has not yet been ordered. It seems very early to be dealing with questions of admissibility of evidence at trial. Nevertheless, the application has been made and I must deal with it.

1. 1. The claimant accepts that it cannot rely on absolutely all the evidence going to credibility that it can find. There must come a time when it has fairly made its point and must move on. But it argues firstly that the application is premature, because even the first case management conference has not yet been held, and disclosure has not yet been ordered. It says that the proper time for consideration of the admissibility of evidence is at trial, unless there are special reasons. The claimant submits secondly that the evidence exclusion order sought by the defendant would result in the claimant being unable to enjoy a fair trial. It says the order would prevent the claimant from cross-examining the defendant (or any of his other witnesses) on anything said in the Kleiman Litigation which contradicts something said in the present litigation. Thirdly, the claimant argues that the evidence in the Kleiman Litigation is relevant to the dispute in this case, and the court’s power to exclude relevant evidence must be exercised consistently with the overriding objective in CPR Part 1. Fourthly, the defendant has indicated that he wishes to call an Autism Spectrum Disorder Expert to give expert opinion evidence of the trial. If he is permitted to do this, then evidence of what happened in the Kleiman Litigation will be relevant in cross-examining such an expert. Fifthly, the claimant submits that the evidence exclusion order would lead to satellite litigation.

First limb

1. 1. The first limb of the order sought seeks an order that evidence of findings of fact made in the Kleiman Litigation be not admissible in these proceedings. This is the subject of the rule in Hollington v Hewthorn. If evidence is placed before the court of what a judge in other civil proceedings between different parties found as a fact, it is inadmissible to prove the same fact in the present proceedings. If, however, that evidence is put before the court, not to prove the same fact, but instead (say) for the purpose of proving that the judge in the other proceedings actually said those words, then it will be admissible for that purpose. Accordingly, I could not make the order sought under this limb in any event: it is too broadly worded.

1. 1. But, even in the narrower form of order, that the judicial findings from the US litigation be not admissible as evidence of the facts so found, I do not consider that I should make the order. The rule in Hollington v Hewthorn is clear, and it will be the duty of the trial judge to decide whether it applies to the particular evidence tendered. It would be unusual for another judge, long before the trial, and with less information than the trial judge will have, to bind the hands of the trial judge in this respect. If this limb of the order is made now, what is to prevent other orders being sought at this stage to prevent admissibility of evidence at trial which infringes other of the rules of evidence? These are matters best left to the trial judge.

Second limb

1. 1. Turning to the second limb, this asks for an order that “evidence regarding alleged assertions made by members of the public of the kind referred to in paragraph 66 of the Particulars of Claim” be inadmissible at trial. This seems to suffer from similar problems to those affecting the first limb. Evidence of an assertion of a member of the public to the effect that the PGP signature on an email, having regard to its technical properties, was created at (or before or after) a particular time could be adduced either to prove that the assertion was made (in which case it would be admissible for that purpose) or for the purpose of proving that the assertion was true. In the latter case it would be (hearsay) evidence of an opinion. The hearsay aspect can be got over. But opinion evidence is not admissible unless from an appropriate expert and (usually, though not invariably) in compliance with CPR Part 35. How far expert opinion evidence will be permitted at the trial is a matter for the court at the CMC. I should not be trying to deal with it now, on more limited material than the court will have then. On the other hand, so far as the assertion was non-expert opinion, it would be inadmissible anyway, and no order is needed at this stage to control it.

Third limb

1. 1. The third limb asks for an order rendering inadmissible at trial “evidence to the effect that the email referred to in paragraph 66 of the Particulars of Claim and paragraph 30 of the Reply was determined by other persons to be a forgery”. Evidence of a determination by others that an email was a forgery stands on the same footing. If it is adduced to prove merely that someone carried out or produced a particular determination, it is admissible. If it is adduced to prove that the findings in the determination actually happened, it is inadmissible evidence of an opinion, unless the opinion is that of an appropriate expert. By parity of reasoning with the previous limb, I should not make any order under this one.

Fourth limb

1. 1. Lastly there is the fourth limb, seeking an order rendering inadmissible at trial “evidence as to the authenticity or otherwise of the email referred to in paragraph 66 of the Particulars of Claim and paragraph 30 of the Reply.” This stands on a different footing. Since the authenticity of the email is in issue, the parties are entitled to adduce evidence in support of their respective positions. This might be factual, such as showing that the apparent maker could not have made it on the date it bears, for example because he was already dead. But it might be expert opinion evidence, for example to show that its metadata or other properties not understood by lay people are consistent or inconsistent with its authenticity. The question of expert evidence, as I have said, is one for the CMC, rather than for me at this stage.

Decision

1. In the result, therefore, I dismiss the application so far as it relates to the evidence exclusion order sought by the defendant.