Investigatory reports liable to be used as evidence in subsequent proceedings

Transport: a recent court decision supports the view that independent agencies' reports provide valuable analysis of the facts and so can and should be used in subsequent court proceedings.

14 March 2014

We commented in May on the use of accident investigation reports in subsequent legal proceedings. This is a key issue in transport industries where accident reports are prepared by independent agencies to investigate the causes of incidents with the aim of avoiding future repetition – the AAIB (Air), MAIB (Marine) and RAIB (Rail) commonly prepare reports of this type. The principle behind such reports is that they are not intended to cast ‘blame’ or liability on any party and consequently there will be no incentive for parties not to co-operate with the investigators.

However, once in existence they are obviously a tempting independent statement of the facts connected to an incident that potential claimants may wish to rely upon to prove the foundation of their claims. If parties are aware of this potential use they might therefore become more cautious about providing full and frank explanations to the investigator.

The Court of Appeal has now (13 March 2014) considered the admissibility of such reports in this context. It has firmly supported the original court view that the reports are valuable independent analysis of the facts and consequently can and should be used in subsequent court proceedings of any type. If parliament had meant them to be inadmissible it would have said so.

This now places an additional onus on the preparation of such reports and the care taken by relevant parties to making sure that the investigator has the relevant facts to place its conclusions fully in context. All transport parties should be aware of the future potential uses that incident investigations may lead to.

Ann Metherall and Chris Jackson are partners in Burges Salmon’s Transport team advising clients on investigations and managing the response to incidents.

Key contact

Ann Metherall

Ann Metherall Partner

  • Head of Dispute Resolution
  • Head of Health and Safety
  • Transport

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