Experts in the hot tub
Lord Justice Jackson has published the final report of his review of civil litigation costs, and his key idea for experts will get them into hot water!
In November 2008 the Master of the Rolls appointed Lord Justice Jackson to lead a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations to promote access to justice at proportionate cost. His 555-page final report was published on 14 January 2010 and contained just two proposals relating to expert witnesses. One is to make a minor change to CPR Part 35 requiring that a party seeking permission from the court to bring forward expert evidence should give the court an estimate of the cost of that evidence. The other proposal is to pilot the use of the Australian practice of concurrent expert evidence, colloquially known as ‘hot tubbing’.
With hot tubbing, experts from the same discipline are sworn in at the same time and the judge chairs a
discussion between the experts. The joint statement from an earlier meeting of experts under CPR 35.12 (recording the matters upon
which the experts disagree) serves as the agenda. Counsel join in the discussion and they
can put questions to the experts, as and when permitted by the judge. In addition, the
experts can put questions to each other.
Expert opinion is recognised by the courts as being a special type of evidence. But the adversarial system has shown that it is not well suited to working out who is ‘correct’ in a disagreement between experts. Ideas coming from the Law Commission’s work on pre-trial testing of expert evidence should help address this problem in criminal cases. Could the ‘hot tub’ do the same for civil cases?
Well, by allowing the court to hear the experts’ views given side by side, and having a judicially guided impartial exploration of the differences between the opinions expressed, a better understanding of the evidence should emerge. But the chairing skills of the judge will be important if the court’s ability to gain a proper appreciation of the importance of the opinions expressed is not to be frustrated by the assertiveness of one or other of the experts. There is also the risk of a judge covertly favouring one party and adopting an advocate’s mantle in choosing how to question the experts.
The one thing the hot tub is unlikely to do, though, is save much money. By the time two experts are in court ready to jump into the tub, most opportunities for cost-saving through the better use of expert evidence have passed. For all its weight, the Jackson Report singularly fails to address the many ways in which the better use of expert evidence could potentially reduce the cost of litigation (see http://www.jspubs.com/downloads/PDFs/UKREW_MoJ_Nov09.pdf for a few examples).